Fourth Circuit Renders Affordable Care Act Decision; But for Who?

Controversy and the Affordable Care Act ("ACA") are no strangers to each other. The United States is currently entrenched in one of the most influential reform in our history. Earlier this year, the Sixth Circuit out in Cincinnati, Ohio upheld the ACA-particularly the individual mandate-constitutional under the Commerce Clause power. In short, the Commerce Clause is the enumerated powered in Article I, section 8, clause 3 of the United States Constitution permitted Congress "To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes." However, recently the Eleventh Circuit in Atlanta, Georgia, found that the same individual mandate was unconstitutional under the Commerce Clause power. Today, the Fourth Circuit rendered their tiebreaking decisions-but which way did they go?

Out of Richmond, Virginia, the Fourth Circuit dismissed the challenge from the state Attorney General Kenneth Cuccinelli and Liberty University to the ACA. While this provides a numerical victory for the Obama Administration, 2 upholding and 1 striking down, the case was inevitably already going to the Supreme Court anyway and this is nothing more than another symbolic victory. The Fourth Circuit noted several aspects which other courts have not previously noted.

For one, the court noted that the State was ineligible to challenge the law because the individual mandate only applies to the actions of individuals and not for the state. Second, the court remarked that a Virginia law-where the suit originates-enacted a law that no Virginia resident shall be required to purchase health insurance and therefore, there is no reason to address the ramifications of the ACA. This logic is flawed. As this law will, inevitably, also be called under a frustration of purpose preemption argument; this essentially means that the state law is nullifying the effect of a federal law, and therefore is unconstitutional. Third, the court concluded that if they allowed this suit to go through, that it would allow any state to challenge laws against their citizens, no matter how attenuated the connection be. Fourth, and most striking and worrisome for anti-ACA individuals, the court found that the ACA was a valid tax and not a penalty, which every other court had previously found! Moreover, the court held that the tax issue could not be litigated until it was actually in effect.

But this decision may not have been a real surprise. All three judges on the bench were Democratic-appointed judges and voted along party lines. While this was not the case in the Sixth Circuit (Republican-nominated judge ruling in favor of the ACA) and in the Eleventh Circuit (Democratic-nominated judge ruling in against the ACA), the thought of partisanship on the way to the Supreme Court reenters the realm of discussion. While the Supreme Court has five Republicans-appointed and four Democratic-appointed Justices, one Republican-appointed Justice, Chief Justice Roberts, is notorious for being wildly unpredictable in his decision-siding methodology; he likely may be the decision vote if the ACA sinks or swims.

Overall, this decision is not a good one. Nor was the Eleventh Circuit's. The Sixth Circuit's decision is the most viable and well-though out, surprising convincing opinion thus far regarding the ACA. Should the Supreme Court hear the case, the logic of the Sixth Circuit coupled with the composition of the Justices, with the rogueness of the Chief Justice, should spell victory for the Obama Administration.

What do you think? I'd love to hear from you. I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@mmolaw.net. You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.