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Health care in court: Obama leading 3-1, but it ain’t over 'til it’s over

A federal appeals court panel in Washinton, D.C., upholds the constitutionality of Obama's health-care reforms, the third to do so. The Supreme Court is scheduled to consider on Thursday whether to take up one or more challenges to the law.

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In his decision, Silberman, an appointee of President Ronald Reagan, embraced an expansive view of Congress’s authority under the commerce clause and rejected the argument offered by opponents of the law that Congress’s legislative reach only applies to those who are actively involved in commerce.
 “No Supreme Court case has ever held or implied that Congress’s commerce clause authority is limited to individuals who are presently engaging in activity involving, or substantially effecting, interstate commerce,” he wrote.

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Opponents of the law maintain that the commerce power should be limited to regulate only those who are engaged in an economic activity and not those who decline to participate in the health-care market. The mandate has been compared to forcing Americans to buy and eat broccoli regardless of whether they want to buy and eat it.

Critics of the law say it creates an unchecked federal power and that the Obama administration, in its legal arguments on behalf of the reforms, has yet to identify a meaningful restriction on that power.

“We acknowledge some discomfort with the government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service,” Silberman said. “But to tell the truth, those limits are not apparent to us.”   

The appeals court judge also wrote: “That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before – but that seems to us a political judgment rather than a recognition of constitutional limitations.”

Stephanie Cutter, an adviser to President Obama, praised Silberman’s decision in a blog post on Tuesday.  “The ruling is yet another victory for the millions of Americans who are already benefiting from the law,” she wrote.

“Those who claim that the ‘individual responsibility’ provision exceeds Congress’ power to regulate interstate commerce are simply wrong,” she said.

“People who make a decision to forego health insurance do not opt out of the health care market,” she said. “Their action is not felt by themselves alone. Instead, when they become ill or injured and cannot pay their bills, their costs are shifted to others.”

She said $43 billion in uninsured health-care costs were shifted in 2008 to doctors, hospitals, policy-holders, taxpayers, and small businesses.

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