Congress has the authority to make people take action to buy health coverage because the health care market is different from most other markets, according to a 3-member panel at the 6th U.S. Circuit Court of Appeals.

The 3-member panel has decided in Thomas More Law Center vs. Barack Obama (Case Number 10-2388) to uphold a determination by the U.S. District Court in District that the minimum coverage provision of the Patient Protection and Affordable Care Act of 2010 (PPACA) is constitutionally sound. One judge on the panel, James Graham, has agreed with the majority on procedural matters but has concluded that the PPACA coverage ownership mandate is unconstitutional.

Members of Congress and others are trying to repeal PPACA or block implementation Scales of Justiceof all or part of the federal legislative package.

If the act takes effect as written and works as supporters expect, PPACA Section 1501 – the “minimum essential coverage provision” – will require many people who have incomes over a minimum level to have a minimum level of health coverage or else pay a penalty. PPACA also would require many employers to offer health coverage or else pay a penalty.

PPACA supporters say the Commerce Clause of the U.S. Constitution gives Congress the authority to regulate the health insurance market.

The plaintiffs in the Thomas More case — the Thomas More Law Center, Ann Arbor, Mich., and four Michigan residents – have argued that Congress has no authority to make them buy health coverage.

The 6th Circuit has held that Congress does have the authority to require the purchase of health coverage.

“Congress may regulate economic activity, even if wholly intrastate, that substantially affects interstate commerce,” U.S. Circuit Judge Boyce Martin writes in an opinion for the 6th Circuit majority. “Congress may also regulate even non-economic intrastate activity if doing so is essential to a larger scheme that regulates economic activity…. Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce. Furthermore,

Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance. Finally, the provision regulates active participation in the health care market, and in any case, the Constitution imposes no categorical bar on regulating inactivity.”

Federal law already requires health care providers to provide emergency treatment regardless of patients’ ability to pay, Martin says.

“The unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point,” Martin says. “Thus, although there is no firm, constitutional bar that prohibits Congress from placing regulations on what could be described as inactivity, even if there were it would not impact this case due to the unique aspects of health care that make all individuals active in this market.”

Graham, the judge who wrote the opinion concurring in part and dissenting in part, says in his opinion that he agrees with the majority that the plaintiffs had standing to bring the case and that, under the Anti-Injunction Act, the 6th Circuit had the jurisdiction to consider the appeal.

Graham says he disagrees with his colleagues’ analysis of the relationship between the Commerce Clause and the PPACA coverage ownership mandate.

“The mandate is a novel exercise of Commerce Clause power,” Graham writes. “To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does.”

Panels at the 4th Circuit and 11th Circuit have heard oral arguments on cases relating to the constitutionality of the PPACA coverage ownership requirements. Many U.S. district court judges have ruled that the requirements are constitutional, but U.S. District Judge Henry Hudson of Richmond, Va., has ruled that it is unconstitutional. U.S. District Judge Roger Vinson of Pensacola, Fla., has ruled that the provision is unconstitional and akin to a law requiring the people of the United States to eat broccoli.

Other PPACA Mandate case coverage from National Underwriter Life & Health: