ObamaCare Faces Tough Judicial Crowd

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A three-judge federal appeals court panel heard arguments in the 11th circuit on Wednesday on whether to overturn a Florida judge’s ruling that struck down the Patient Protection and Affordable Care Act, more informally known as Obamacare.

The suit was brought by 26 governors and states’ attorneys general, almost all of them Republican. Similar suits were filed in 5 venues, with the government prevailing in three cases and the plaintiffs coming out on top twice.

At issue: Does the Congress have the right to force Americans to purchase health insurance? Judge Robert Vinson of Flordia’s District Court in Pensacola ruled in January that the mandate was unconstitutional and declared the entire statute void. He later stayed his own ruling and allowed the implementation of the law to continue while appeals made their way through the court system.

In addition to challenging the mandate, plaintiffs are also challenging the legality of the massive expansion of Medicaid, saying it would put too much of a financial burden on states.

Regardless of which side is triumphant, it is expected that the loser will petition the Supreme Court to hear the case — perhaps later this year.

The 11th circuit is considered to be one of the most conservative appeals courts in the nation. Greg Bluestein writing for RealClearPolitics.com says of the judges, “None of the three are considered either stalwart conservatives or unfailing liberals.” Chief Judge Joel Dubina was appointed by George W. Bush, while Judges Stanley Marcus and Frank Hull were tapped by Bill Clinton, although Hull was originally appointed by Ronald Reagan to the District Court in Florida.

Court watchers say that both sides had reason for hope. During three hours of questions, the judges sharply questioned acting U.S. Solicitor General Neal K. Katyal about the power of Congress to compel individuals to purchase any product, much less health insurance. “If we uphold this, are there any limits [on government power]?” asked Judge Dubina. Judge Marcus said he couldn’t find a case in the law where the courts upheld “telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?”

While the judges appeared skeptical about whether the government could force individuals to purchase a private product, they also didn’t seem to think much of the plaintiff’s argument that what Congress was really doing was regulating “economic inactivity.” Walter Delligner, acting solicitor general under Bill Clinton, detected some doubt in the judge’s questions of former Bush administration Solicitor General Paul Clement who is representing the plaintiffs.”The inactivity point is losing salience,” Dellinger said.

But it is the constitutionality of the mandate that most concerns the government, because without it, Obamacare collapses. There would be no way to fund the program. As Clement observed, “If you take out the hub, the spokes will fall.”

The Washington Examiner’s Randy Barnett points out the mandate is clearly the nub of the matter — both legally and psychologically. If the mandate passes muster with the courts,”[t]he next time Congress decides to impose an economic mandate, the courts will defer to Congress’ own assessment of whether another economic mandate is ‘essential.’”

Ilya Shapiro of the Cato Institute was even more adamant on this point:

This legal process is not an academic exercise to map the precise contours of the Commerce Clause or Necessary and Proper Clause — or even to vindicate our commitment to federalism or judicial review. No, all of these worthy endeavors are just means to achieve the goal of maximizing human freedom and flourishing. Indeed, that is the very reason the government exists in the first place.

Indeed, many of the judge’s questions to Katyal were directed to the notion of whether the government thought there were any limits at all to the powers in the Commerce Clause. Judge Marcus asked if the government could force people to buy insurance, why not solar panels? “If they can compel this, what purchase could they not compel?” he asked.

Katyal answered that the health insurance market was “unique” because everyone at some point in their lives would need health care. Hospitals are also unique because of a federal law that prevents them from turning away anyone who is ill. “If you walk in penniless, can you say, give me the solar panel?” he asked.

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  • geez

    I'll guarantee you, no one in either house would give up their current health insurance plan for Obamacare… ever. But they have no problem shoving it down out throats. Vote vote vote in 2012, let's take out the garbage.

    • davarino

      They are better than us, so they deserve to have the best. We only deserve to have what will keep up alive long enough to vote more democrats into office, because they care so much for us little people.

    • trickyblain

      But they don't have to give it up for "Obamacare." If you have a plan you like, neither do you.

    • Asher

      It is for sure that no one in the House or Senate will accept rationing or government control of their families healthcare. If the Government can force you to buy healthcare, it can force you to buy anything, then look at all the Waivers granted to the Unions and other companies who do not want Obama care..The Law is supposed to be equal to everyone, so how does the government select who deserves them and who doesn't? They are all Democrat contributers to Obama's campaign.

  • Chezwick_mac

    Regardless of how the appellate court rules, this will surely go to the Supreme Court, where once again, Anthony Kennedy will decide the fate of the nation.

  • kblink45

    The Left is a big fat baby who can't decide what it wants so it demands everything!

    • Jim_C

      I don't know….substitute "electorate" for "Left" and I'll go along with that.

  • zsqpwxxeh

    The question is of course ridiculous. Any first year law student who has read the Constitution knows that the mandate is unconstitutional. But the people deciding these cases are not impartial judges. They are robed politicians advancing their agendas. Notice how so many are saying that Kennedy has the final say. What does that imply? That you already know that Kagan, Breyer, Ginsburg and the Wise Latina are going to vote to uphold it regardless of the facts. And you would be absolutely correct.

    • coyote3

      Well, I agree with you that it is as unconstitutional as admitting a confession into evidence that was beaten out of someone, but it is not that simple. There all sorts of issues of competing interests, i.e., rational relationship v. strict scrutiny, and a host of other things going on. I was in sitting in a state courtroom one time, and a young magistrate, (a really wise Latina), and a former USBPS agent, was on the bench. One of these "stream of consciousness" kind of guys was a defendant in civil case, and he inquired about representing himself. She told him, in a sweet Tejas drawl, that he could certainly do so, but he would be held to the same standard as a lawyer. She then remarked that if the defendant needed surgery, he might want to consider going to a medical doctor. She stated that the odds were, that, the medical doctor would get a better result, than having your buddy do it. At a break in the hearing, we were talking, and she remarked that she said that, because she never ceased to be amazed at the fact that people wouldn't think of being their own doctor/dentist, but that they thought nothing of trying to act as a lawyer.

  • anolesman

    I voted for Obama to prove I wasn't a racist, I will not vote for Obama in 2012 to prove that I am not a idiot.

    Maybe if the other 300 million voters do the same we won't have to worry about Obamacare.

  • http://www.fx-exchange.com/ Bowmanave

    Is Billy Beane the most over-rated man in baseball? He is being played by Brad Pitt in a movie…. yet I seem to remember he has as many World Series titles as I do.

  • BS77

    WHere the heck did all these "waivers" come from? Was a waiver part of the original health care bill? A convenient out for unions and other big contributors to politicians?

  • coyote3

    Tough judicial crowd? Indeed, the "crowd" is supposed to be tough, and especially tough, when there are questions of fundamental rights at stake.

  • Luis

    God bless David Horowitz, Daniel Greenfield and the rest at FP Mag!

    On this subject of Obamacare, we absolutely must, all of us, work hard, HARD, to get rid of Obama and his thugs. He is a lightweight, a flim flam, an urban hick/hayseed/rube, a maniac, a socialist, and overbearing and arrogant on top of all that. When we get rid of him it will all seem like just a bad dream and we can go back to being the greatest nation in the history of man. There will, of course, be a hangover, but Americans are tough and we can get over it. This might be the best thing that ever happened to us, because conservatives were getting a little too complacent, a little to defeatist. After we get rid of the scum, it will be a long time before Carville writes another book about liberalism taking over.

  • elihew

    Until or unless we oust this current administration, this county will continue its slide into oblivion…at the rate we've seen it deteriorate, it won't take long!