A conservative-leaning panel of federal appellate judges raised concerns about President Barack Obama's health care overhaul Friday, but suggested the challenge to it may be premature.
The arguments at the U.S. Court of Appeals in Washington over a lawsuit against Obama's signature domestic legislative achievement focused on whether Congress overstepped its authority in requiring people to buy health insurance or pay a penalty on their taxes, beginning in 2014.
But Judge Brett Kavanaugh, a former top aide to President George W. Bush who appointed him to the bench, said that he has a "major concern" that courts might not be able to rule on the law's constitutionality until 2015. That's because a federal law bars most challenges to tax-related legislation before the tax or penalty is paid.
A federal appeals court in Richmond cited that law in throwing out another challenge to the overhaul. Two other appeals courts have reached differing conclusions _ one declaring the law unconstitutional and the other upholding it. The Supreme Court is expected to weigh in and could possibly even decide to review the law before the Washington circuit issues an opinion.
The Washington case was brought by the American Center for Law and Justice, a legal group founded by evangelist Pat Robertson, on behalf of five Americans who chose not to buy health insurance because of religious beliefs that God heals their afflictions or a holistic approach to medical care. Their attorney, Edward White, told the appellate judges that one of the plaintiffs, Charles Edward Lee of San Antonio, is so devoted to faith healing that he hasn't been to a doctor in 20 years and has told his family that even if he has a heart attack or is hit by a car just to pray for him and not seek medical care.
White argued the health care act passed by Congress is unconstitutional. "Congress cannot force people into private commerce and to buy a private product for the rest of their lives," White said.
But Kavanaugh pointed out that Congress has the power to regulate commerce and can require insurance companies to cover all Americans. "It won't work without an individual mandate attached to it," Kavanagh said. He also theorized that the health care law could mark the shift in the social safety net to private industry. "Why should the court risk getting in the middle of that?" the judge questioned.
But later, when questioning government attorney Beth Brinkman, Kavanaugh and the panel's other Republican-appointed judge, Laurence Silberman, expressed concern that if the court upholds the requirement to buy health insurance, Congress could require Americans to buy a wide variety of other products. Kavanaugh said that could include individual retirement accounts to replace Social Security and Silberman wondered if wealthy Americans could be required to buy a car from General Motors if the company falls toward bankruptcy again.
Brinkman responded that the government isn't requiring Americans to buy health care for the product's own sake, but to finance the system as part of an expanded regulatory scheme.
A requirement to buy a product "has never been done in 222 years," Kavanaugh said. "That alone is cause for judicial hesitation."