Three federal judges in Atlanta on Wednesday gave a cool reception to the idea that the government has the power to require Americans to buy health insurance. But they also asked sharp questions of those opposing the individual mandate and did not tip their hands on how they will rule.
For nearly three hours, the appeals court panel -- two Democratic appointees and a Republican appointee -- heard arguments about whether President Barack Obama’s health care law violates the Constitution. The most controversial provision is the requirement that nearly all Americans purchase a minimum level of insurance by 2014 or pay a tax penalty.
Chief Judge Joel Dubina, appointed by President George H. W. Bush, appeared to be the most skeptical as to whether Congress had such authority under the U.S. Constitution’s Commerce Clause. “If we uphold the individual mandate in this case, are there any limits on congressional power?” he asked.
Acting U.S. Solicitor General Neal Katyal, arguing on behalf of the Obama administration, said it would be a “deep, deep mistake” for the court to strike down the law. He said the health care market is unique in that it cannot turn away uninsured pregnant moms and stroke victims, and he noted that insured taxpayers shoulder $43 billion a year in medical care provided to the uninsured.
“The prevention of billions of dollars of cost-shifting in the health markets and the need to make health insurance widely available to the 50 million uninsured Americans are legitimate Commerce Clause ends,” he said. “The only question is the means by which we get there.”
The panel of the 11th U.S. Circuit Court of Appeals heard the Obama administration’s appeal of a ruling by Senior U.S. District Judge Roger Vinson of Pensacola, Fla., who found the individual mandate unconstitutional. The challenge is mounted by 26 states, including Georgia, the National Federation of Independent Business and two individual plaintiffs.
Wednesday’s hearing drew a crowd that spilled out of the ornate courtroom and into an adjoining room. A line outside the court began forming shortly after 6 a.m. -- more than three hours before the hearing started. As the arguments were heard, dozens of people marched in protest against the law on the street outside the courthouse, many carrying placards that read “Hands Off My Health Care.”
There is no timetable on when the panel will rule, but its decision won’t likely settle the matter. The U.S. Supreme Court is widely expected to ultimately decide the issue.
The Atlanta case could be highly influential because it involves a challenge from more than half the states in the country and because Vinson is the only federal judge to throw out the Patient Protection and Affordable Care Act in its entirety.
Paul Clement, the former solicitor general under President George W. Bush who argued on behalf of the states, said the case boils down to whether the federal government can compel an individual to engage in commerce so it can then regulate the individual.
The federal code is “chock full” of incentives to get people to act in certain ways, he said. “But what you don’t see in any of those provisions is when Congress goes the last mile and says, you know what, we’re not going to rely on incentives to get you to do what we want you to do. We’re going to force you to do it. The only provision like that out there is the individual mandate.”
Judges Frank Hull and Stanley Marcus, both put on the court by President Bill Clinton, dominated much of the questioning and raised their own concerns with the law.
Hull asked what would happen to massive health-care overhaul law if the court strikes down the individual mandate provision.
If the mandate falls, Katyal said, soo too must a few other provisions, such as the one that bars insurers from denying coverage because of an individual’s pre-existing conditions.
Marcus asked Katyal if he could cite any U.S. Supreme Court case in which the court upheld a statute that compelled “any private person to purchase a private product on the open market, even if they were not disposed to do so.”
When Katyal said the question should not be framed in such a way, Marcus pressed on. “I still would like an answer to my question,” he said.
“I cannot come up with one specifically in those terms,” Katyal replied.
But the tone of questions posed by Hull and Marcus shifted after Clement took the podium. They repeatedly sought to poke holes in the states’ case, such as the contention that Congress cannot regulate “inactivity” -- in this case the failure to buy health coverage.
Hull said she does not buy the “inactivity” argument. She said a person’s decision not to carry health insurance is, in her opinion, “economic activity.”
Marcus noted it is undisputed that the uninsured make more than 20 million visits to emergency rooms each year. “Why, if that’s true, would that not be in every classic sense activity?” he asked.
At the close of the hearing, Dubina said the court faces “a very difficult case and it will certainly affect all of the citizens of our nation.” The chief judge then acknowledged the U.S. Supreme Court will likely have the final word, telling Katyal that he will likely “be in Washington” the next time he argues the case.
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