U.S. Health Care Policy
The Congressional Budget Office said the insurance coverage provisions of the health care law will insure 2 million fewer than expected. REUTERS

A Washington, D.C., federal appellate court Tuesday upheld the constitutionality of the health care reform law's requirement that most Americans carry health insurance, just days before the U.S. Supreme Court justices meet to decide whether to decide the issue.

A conservative judge appointed by President Ronald Reagan wrote the majority opinion upholding Affordable Care Act's individual mandate. This is the second appellate court to decide in favor of the Obama administration.

In the 2-1 ruling, Judge Laurence Silberman wrote that the opponents of the health care law in this case failed to find anything in the text of the U.S. Constitution or in previous Supreme Court cases to support their argument.

Rather, opponents of Obamacare in this case were left to attack the novelty of the individual mandate, which is enforced through a tax penalty.

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, Silberman wrote. But that seems to us a political judgment rather than a recognition of constitutional limitations.

Judge: Right to Be Free from Regulation Is Not Absolute

Silberman added that the mandate may encroach on personal liberty, but no more so than requiring restaurants or hotels to serve all guests regardless. The right to be free from regulation, he wrote, is not absolute.

Silberman's opinion seems to mirror the government's case that Congress can regulate commerce in this way, even if there is a lack of any clear limitations on that power.

It suffices for this case to recognize, Silberman wrote, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health services.

Judge Harry Edwards, a President Jimmy Carter appointee, concurred with Silberman.

The lone dissenter, Judge Brett Kavanaugh, appointed by President George W. Bush, declined to weigh in on the merits of the individual mandate, instead deciding that the entire lawsuit should be barred because of an obscure tax law that prohibits courts from hearing cases seeking to stop taxes before they are paid.

Silberman, however, said the court is able to hear the case because Congress specifically called the tax a penalty, which is to enforce the individual mandate, not raise revenue.

This decision is the fourth to be reached on the appellate level. The Supreme Court justices are expected to conference as early as Thursday to decide which, if any, legal challenges to the Affordable Care Act they will take.