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PPACA: Curtain Opens on Individual Mandate Appeal

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WASHINGTON BUREAU – A lawyer for Patient Protection and Affordable Care Act opponents today faced a tough appeals court crowd as he challenged an individual health insurance ownership provision.

A 3-judge panel from the 4th U.S. Circuit Court of Appeals was hearing oral arguments in Richmond, Va., in two major PPACA individual mandate cases – Liberty University vs. Geithner and Virginia vs. Sebelius.

Supporters of the PPACA individual health insurance ownership mandate provision say the U.S. Constitution commerce clause gives Congress the authority to regulate commercial activity.

Opponents of the mandate say the clause gives Congress the authority to regulate commercial Justiceactivity but not the authority to require inactivity.

If the PPACA mandate takes effect as written, it will require most U.S. taxpayers with incomes over a minimum level to have a minimum level of health coverage or else pay a penalty.

Mathew Staver, a lawyer for Liberty University, a conservative institution in western Virginia, told the court that a citizen who goes without health insurance has chosen not to engage in economic activity and cannot be forced to take part in the market with a government mandate.

“What in the commerce clause is going to require activity?” asked Judge Diana Gribbon Motz, a member of the 4th Circuit panel. “Does it mention activity?”

“I think it’s inherent when you talk about regulating commerce,” Staver said. “Commerce cannot be idleness.”

Acting Solicitor General Neal Kumar Katyal, who represented the Obama administration, said

an individual who goes without insurance nevertheless takes part in the vast health care market, when he or she sickens or is injured and shows up for medical care.

Uncompensated care costs the country $43 billion per year and raises the average family’s annual health care premium by $1,000, Katyal said.

Health care is “an almost universal factor of our existence,” Katyal said. “One cannot opt out of it on an individual basis.”

U.S. District Court Judge Norman Moon sided with the Obama administration and upheld the PPACA individual health insurance ownership mandate in the Liberty University case, which was filed in Lynchburg, Va.

U.S. District Judge Henry Hudson sided with Virginia Attorney General Kenneth Cuccinelli, a Republican opposed to the mandate, in the Virginia case, which was filed in Richmond.

After President Obama signed PPACA into law, the Virginia General Assembly passed a law banning individual health insurance ownership mandates. Cuccinelli has argued that Virginia has standing to oppose the PPACA mandate because it has a sovereign interest in protecting the Virginia health insurance ownership mandate ban.

Judge Andre Davis, a member of the 4th Circuit panel, today expressed skepticism about the Cuccinelli standing argument.

“How on earth can there be standing if all it takes to establish standing is that the state pass a law and the attorney general moves forward?” Davis asked.

The judges gave no indication as to when they would rule on the case.

The 4th Circuit panel was chosen randomly, by a computer, officials say.

PPACA litigation watchers note that the panel includes two judges who were appointed by Obama and one who was appointed by President Clinton.

The mandate is expected to undergo another test in June, when a panel from the 11th U.S. Circuit Court of Appeals will consider a case that was brought by 26 states.

PPACA opponents have filed more than 30 suits seeking to overturn the law.

The Obama administration is “confident the various cases regarding the law will be decided quickly, long before the law is scheduled to be fully implemented,” White House representative Stephanie Cutter says in a statement.

Administration officials are confident they will prevail, Cutter says.

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