Is there hope for another favorable ruling for liberty?
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.
That is one of three arguments being advanced by the government in the various lawsuits that have been filed. Another defense of the mandate is that it is essentially a tax and that the Constitution gives Congress the sole power to levy taxes. Finally, the government's Commerce Clause argument rests on the notion that since insurance is economic activity, Congress has the power to regulate it any way it sees fit.
These arguments have been made in district courts in Virginia (two different courts), Michigan, Florida, and Washington, D.C where Obamacare suits have been heard. In the three cases in which the government has prevailed, the legal reasoning upholding the mandate has been original, to say the least.
A judge in Michigan ruling on the mandate declared that it was constitutional because deciding not to purchase health insurance is an "economic decision." Judge George Caram Steeh wrote that economic decisions include decisions not to engage in economic activity.
In the Washington, DC Obamacare case, Judge Gladys Kessler's ruling in favor of the mandate was even more bizarre. Congress has the power to regulate "decision-making" because it is "mental activity," wrote the judge. She argued that "[m]aking a choice is an affirmative action, whether one decides to do something or not do something." Ilya Somin of George Mason University says that "[t]his approach would allow the Commerce Clause to cover any choice of any kind."
Somin sums up the danger:
All three arguments have a common defect: if accepted by the courts, they would give Congress the power to enact virtually any mandate of any kind. Such a ruling would be unprecedented and would make a hash of the Constitution's carefully defined limits on federal power.
In this sense, the battle over Obamacare is a battle for America's soul. It will answer -- perhaps with a finality that lovers of liberty would regret for all time -- the question that has faced every generation of Americans since our founding: what are the limits of federal power? If the Supreme Court confirms a federal mandate that forces individual American citizens to purchase health insurance, there will be no discernible limits on government as long as Congress says that it is regulating economic activity. The precedent would be set, the die cast.
The 11th circuit hearing was just a warm-up. The real show will begin when the nine justices of the US Supreme Court don their robes to hear the most consequential case to come before it in many years.