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Health reform opponents lose in another appellate court

But the government didn't, exactly, win.

Today the Fourth Circuit Court of Appeals decided appeals of district court decisions from Virginia about the Affordable Care Act (the ACA). It dismissed the decision from the Eastern District of Virginia, Virginia v. Sebelius, that had held the Act unconstitutional. And then it dismissed the decision the from Western District of Virginia, Liberty University v. Geithner, that held the Act constitutional. In both cases, it decided that neither it nor the lower courts had jurisdiction to decide the cases. In the Virginia case, the Commonwealth was the only plaintiff and it challenged only one part of the Act - the individual mandate, which, as the court pointed out, couldn't apply to it, as it is not an individual. It lacked "standing," the court held. In the Liberty University case, the plaintiff challenged the penalties the IRS is supposed to use to enforce both the individual mandate and an employer mandate. This, the court held, ran afoul of an 1867 act that prevents courts for hearing cases brought to enjoin the assessment or collection of a tax, the idea being to force the taxpayer to pay the tax and then sue for a refund.

Because the court concluded it didn't have jurisdiction over the cases, it couldn't hold the ACA either constitutional or unconstitutional, although, in separate, individual opinions, two of the judges said (in a non-binding form we call "dicta") that they would hold it constitutional, one as part of the taxing power and the other as part of Congress's power over interstate commerce.

What does it mean? Same as before - the Supreme Court is going to decide the constitutionality of this health reform, though probably through the cases from other circuits (the 6th circuit upheld the law, the 11th circuit struck it down). Of the nine appellate judges, on three courts, who have reviewed these appeals, 5 (including one Republican appointee) have found the ACA constitutional, 3 (including one Democratic appointee) have found the ACA unconstitutional, and 1 hasn't opined. But those aren't the nine judges who count - the nine judges of the Supreme Court are likely to decide this issue sometime in 2012 or 2013.

For more details, see my blog post at the Center for Law and the Biosciences blog.

Hank Greely, JD, is a Stanford law professor and an expert on the legal, ethical, and social issues surrounding health law and the biosciences. He is director of the Center for Law and the Biosciences, and he chairs the steering committee of the Stanford Center for Biomedical Ethics.

Previously: Thoughts on the Eleventh Circuit health-care law ruling and U.S. Appeals Court rules against health-care law

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