PPACA: Curtain Opens on Individual Mandate Appeal

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 activity 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.”