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(Editor's Note: The United States Supreme Court announced  November 14 that it will hear a legal challenge to the national health care law with a decision expected in the summer of 2012.)


Reporter Sarah Kliff has noted that the U.S. Court of Appeals for the District of Columbia Circuit has just ruled 2-1 that the federal health insurance reform law is constitutional.

(The great similarities between the federal law and the Massachusetts individual mandate law passed in 2006 are often observed since both are built on an individual mandate to acquire health insurance.)

While the question of constitutionality seems headed to the U.S. Supreme Court, the Circuit Court decision is notable if only for the fact that it was written by Laurence Silberman, who, as Kliff writes, "has a lengthy history of conservative legal thought."

Judge Silberman, she writes, "appointed by President Ronald Reagan, is the first Republican appointee to actually author an opinion that finds the health reform law, and its mandated purchase of health insurance, constitutional."

"What Silberman wrote in today’s opinion hews very closely to the legal argument that the Obama administration has pushed in the courts: The federal government has a constitutional right to regulate an individual’s choice not to purchase insurance, because that decision has an economic effect on others," Kliff notes.

She then takes an excerpt from Judge Silberman's opinion: " It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services."

Kliff notes that party affiliation has not necessarily been an accurate indicator of how judges view the federal health insurance law, and provides links to examples of judges appointed by Democrats ruling against the law and judges appointed by Republicans ruling in favor, but not in the starkly clear language employed by Judge Silberman.

The Christian Science Monitor surveys the Circuit Court scorecard (3 to 1 to uphold the law) but concludes "it ain't over 'til it's over."

In Slate, Simon Lazarus writes that Judge Silberman used a "strict constructionist" legal approach in drafting his opinion.

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