The score in the legal battle over President Obama’s health-care reform law is now 3 to 1.

In constitutional challenges to the law before federal courts of appeal, three courts have upheld it, and one has not.

The latest ruling affirming the constitutionality of the Affordable Care Act (ACA) was issued Tuesday by a federal appeals court panel in Washington.

The decision, authored by Senior Judge Laurence Silberman, dismissed an appeal filed on behalf of four citizens who claimed the ACA’s individual mandate exceeded Congress’s authority under the commerce clause.

The centerpiece of the reform law requires that all Americans purchase a government-approved level of health insurance or pay a penalty.

Those challenging the law have attacked that provision as an unprecedented expansion of federal power that exceeds constitutional limits.

Judge Silberman disagreed. “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,” he wrote in a 37-page decision joined by Senior Judge Harry Edwards.

The third member of the appeals court panel, Judge Brett Kavanaugh, issued a dissent, saying he believed the appeals court lacked jurisdiction to hear the case and should not have addressed the merits of the arguments.

The decision was issued two days before the US Supreme Court is scheduled to consider whether to take up one or more cases testing the constitutionality of the ACA.

To date, federal appeals courts in Cincinnati, Richmond, Va., and now Washington, D.C., have upheld the health-care reform law. A federal appeals court in Atlanta declared the mandate unconstitutional.

If the Supreme Court agrees to take up the issue, oral arguments would likely be set for next spring with a decision issued by the end of June.

Supporters of the health-care reform law praised Silberman’s decision, noting that he is considered a conservative jurist. Some analysts suggested that his opinion might provide a template for conservative justices seeking to uphold the ACA.

Other analysts said that as an appeals court judge, Silberman was aware that his opinion would not be the last word on the issue.

Most legal analysts believe the high court will agree to hear at least one ACA case and address the constitutionality of the individual mandate. Analysts are in sharp disagreement, however, about how the justices might ultimately resolve that issue.

In his decision, Silberman, an appointee of President Ronald Reagan, embraced an expansive view of Congress’s authority under the commerce clause and rejected the argument offered by opponents of the law that Congress’s legislative reach only applies to those who are actively involved in commerce.



“No Supreme Court case has ever held or implied that Congress’s commerce clause authority is limited to individuals who are presently engaging in activity involving, or substantially effecting, interstate commerce,” he wrote.

Opponents of the law maintain that the commerce power should be limited to regulate only those who are engaged in an economic activity and not those who decline to participate in the health-care market. The mandate has been compared to forcing Americans to buy and eat broccoli regardless of whether they want to buy and eat it.

Critics of the law say it creates an unchecked federal power and that the Obama administration, in its legal arguments on behalf of the reforms, has yet to identify a meaningful restriction on that power.

“We acknowledge some discomfort with the government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service,” Silberman said. “But to tell the truth, those limits are not apparent to us.”

The appeals court judge also wrote: “That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before – but that seems to us a political judgment rather than a recognition of constitutional limitations.”

Stephanie Cutter, an adviser to President Obama, praised Silberman’s decision in a blog post on Tuesday. “The ruling is yet another victory for the millions of Americans who are already benefiting from the law,” she wrote.

“Those who claim that the ‘individual responsibility’ provision exceeds Congress’ power to regulate interstate commerce are simply wrong,” she said.

“People who make a decision to forego health insurance do not opt out of the health care market,” she said. “Their action is not felt by themselves alone. Instead, when they become ill or injured and cannot pay their bills, their costs are shifted to others.”

She said $43 billion in uninsured health-care costs were shifted in 2008 to doctors, hospitals, policy-holders, taxpayers, and small businesses.