Federal Court of Appeals Scorecard: 2 to 1 -- Health Care Insurance Mandate Proper

The Department of Justice had this to say, today: ". . . .Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed as well. . . . We will continue to vigorously defend the health care reform statute in any litigation challenging it, and we believe we will prevail. . . ."

So -- this development breaks the tie, and shifts the balance -- now, at both the federal trial and appellate levels, more courts have held the measure proper than improper. In short, the weight of authority at present is in favor of the mandate being a proper and constitutional exercise of Congressional authority. From CNN.com, just now:

. . . .More than two dozen other legal challenges to the law are floating in lower federal courts.

The health care reform act was passed by the Democratic Congress last year, with wide support from the president.

There are about 450 components to the health care law. Some will not go into effect for another two years, but some are already in force.

While the two other federal appeals courts had split on the constitutional question of the individual mandate, the 4th Circuit took a different path, deciding on standing grounds. It was clear from oral arguments in May the judges might rule this way. . .

Virginia's solicitor general, Duncan Getchell, struggled during argument to justify state intervention on behalf of its citizens -- an issue known as standing. The judges from the bench suggested similar past court cases limited state options to challenge federal laws.

The Justice Department [had said] that since every American will need medical care at some point in their lives, individuals do not "choose" to participate in the health care market. Federal officials cite 2008 figures of $43 billion in uncompensated costs from the millions of uninsured people who receive health services, costs that are shifted to insurance companies and passed on to consumers.

The matter of the standing of states and private groups to challenge the law was one of the questions left unanswered after a panel of the 11th Circuit in Atlanta ruled in August, in a lawsuit filed by Florida and 25 other states, that requiring individuals to purchase insurance was unconstitutional; and a panel of the 6th Circuit in Cincinnati found, in a case from Michigan, that the individual mandate is lawful. . . .

Next up? The Supremes will take the case -- as this is now a clear split of authority, or inconsistent decisions, among the three involved federal circuits.

Stay tuned.