by Michael T. Graham

On September 8, 2011, the U.S. Court of Appeals for the Fourth Circuit dismissed two lawsuits challenging the constitutionality of President Obama’s health care reform legislation, both on procedural grounds.  In one case filed by the State of Virginia, the court dismissed a challenge to the legislation’s constitutionality finding that the State of Virginia did not have standing to challenge the law.  The State of Virginia argued that the federal health care reform law conflicted with a state law that says no Virginia resident can be forced to buy health insurance.  The court found that the only basis for the Virginia state law was “to declare Virginia’s opposition to the federal insurance mandate.”  In the second case, the Fourth Circuit dismissed a challenge to the federal legislation’s constitutionality on the ground that the individual mandate was an improper tax on citizens.  The court found that it did not have jurisdiction to rule on the case because federal law prohibits challenging a “tax” before it is collected.  In this case, one dissenting judge wrote that jurisdiction did exist, but also stated that he would hold that the health care reform law was a constitutional exercise of Congress’ power under the Commerce Clause.

The Fourth Circuit is now the third federal Court of Appeals to rule on the constitutionality of health care reform.  Previously, the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of the individual mandate under health care reform, while the U.S. Court of Appeals for the Eleventh Circuit struck down the individual mandate requirements as being unconstitutional.  There are several other lawsuits pending across the Country.  These new decisions, along with the prior decisions from the Sixth and Eleventh Circuits, set the stage for the issue of the constitutionality of the individual mandate under health care reform to reach the Supreme Court of the United States, perhaps as early as its 2012 term.

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