(LHP Graphic/Allison Bell)

The members of a 3-judge panel at the District of Columbia U.S. Circuit Court of Appeals have ruled 2-1 that the minimum individual health coverage ownership provision in the Patient Protection and Affordable Care Act of 2010 (PPACA) is constitutional.

One judge on the panel – Senior Circuit Judge Harry Edwards – dissented, arguing that the federal Anti-Injunction Act prohibits the federal courts from considering suits seeking to block implementation of new federal taxes.

The court issued the ruling in connection with Susan Seven-Sky et al. vs. Eric H. Holder Jr. et al. (Number 11-5047).

The plaintiffs in the case were trying to persuade the court that the PPACA minimum essential coverage provision, which is supposed to require most individuals to have a major medical coverage or else pay a penalty, is unconstitutional and represents an abuse of the commerce clause in the U.S. Constitution.

The clause gives Congress the authority to pass laws regulating commercial activity.

The Susan Seven-Sky plaintiffs argue that the clause does not give Congress the authority to require commercial activity, such as active moves to buy commercial products from for-profit companies.

Circuit Judge Laurence Silberman, a Reagan appointee, writes in an opinion for the majority that the question is almost certain to be decided by the U.S. Supreme Court.

Silberman notes in his opinion that Congress took care not to call the penalty that some who fail to own a minimum level of health coverage are supposed to pay a tax, and that the federal courts have never held a payment described in a federal law as a penalty to be a tax for purposes of applying the federal Anti-Injunction Act.

A congressional move to require most Americans to buy a product or services does seem to be “an intrusive exercise of legislative power,” and that “surely explains why Congress has not used this authority before,” Silberman says. “But that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.”

Circuit Judge Brett Kavanaugh, who was appointed by President George Herbert Walker, writes in his dissent that he believes the court must be strict about interpreting the Anti-Injunction Act.

“Because the Anti-Injunction Act is jurisdictional, courts must apply the act even when the executive branch affirmatively waives or does not assert it, and even when the parties jointly ask the courts to decide the relevant merits issues immediately,” Kavanaugh says.