U.S. Supreme Court seemingly the next stop for ObamaCare

John O'Brien Sep. 26, 2011, 6:46pm


WASHINGTON (Legal Newsline) - The federal government apparently won't delay the legal battle over health care reform.

A Department of Justice spokesperson told the Wall Street Journal Monday that the DOJ will not ask the U.S. Court of Appeals for the 11th Circuit to reconsider its August decision that found a portion of the reform package unconstitutional.

The 11th Circuit, one of many appeals courts to rule on the issue, said the $695 annual penalty assessed to individuals who do not purchase health care is unconstitutional. That ruling came in a lawsuit brought by 26 states and the National Federation for Independent Business.

"NFIB is excited that all indications point to the government going directly to the Supreme Court to hear our case and commends the Administration on their decision," said Karen Harned, the executive director of NFIB's Business Legal Center.

"The uncertainty created by the healthcare law on small businesses and other job creators is an immeasurable and burdensome effect on the economy. We are hopeful that the Supreme Court will take our case immediately."

The 11th Circuit's decision was reached by a three-judge panel. The federal government had the option to ask that the case be heard by the entire roster of judges.

Virginia Attorney General Ken Cuccinelli had attempted to bypass the Fourth Circuit and take his challenge straight to the Supreme Court but he was not successful. The Fourth Circuit recently ruled he lacked standing to challenge the mandate.

The Third Circuit ruled in August that a group of New Jersey physicians did not have standing to challenge the law. The Sixth Circuit ruled 2-1 in June for Obama, and the 11th Circuit's decision affirmed an earlier one by U.S. District Judge Roger Vinson, of Florida.

Eleventh Circuit Chief Judge Joel Dubina authored its opinion and was joined by Judge Frank Hull in the majority. Judge Stanley Marcus voted against the states.

"The individual mandate exceeds Congress's enumerated commerce power and is unconstitutional," Dubina wrote. "This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives."

In January, Vinson found that Congress was unconstitutionally regulating economic inactivity and, because the mandate is too integral a part to be separated, he voided the entire legislation. He called it "a difficult decision to reach."

The 11th Circuit's decision, though, did not void the entire legislation.

"Excising the individual mandate from the Act does not prevent the remaining provisions from being 'fully operative as a law,'" Dubina wrote.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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