Granted, granted, a tough oral argument is no guarantee of defeat, but the mere possibility of O-Care crashing and burning in the 11th Circuit is tasty enough to be blogworthy. Time magazine makes a good point: Lower-court rulings on the mandate’s constitutionality have tracked with each judge’s partisan leanings, but the 11th Circuit panel is truly bipartisan. Two of the three judges who heard arguments today were appointed to the district court by Reagan, but two of the three were elevated to the appellate court by Clinton. Given that melange of blue and red, you think famous fencesitter Anthony Kennedy is watching this case to see which way things come down?
They might not strike down the entire law, but the AP’s Magic Eightball says all signs point to yes when it comes to the mandate:
Judges on a federal appeals court panel on Wednesday repeatedly raised questions about President Barack Obama’s health care overhaul, expressing unease with the requirement that virtually all Americans carry health insurance or face penalties.
Chief Judge Joel Dubina, who was tapped by President George H.W. Bush, struck early by asking the government’s attorney “if we uphold the individual mandate in this case, are there any limits on Congressional power?” Circuit Judges Frank Hull and Stanley Marcus, who were both appointed by President Bill Clinton, echoed his concerns later in the hearing…
Hull also seemed skeptical at the government’s claim that the mandate was crucial to covering the 50 million or so uninsured Americans. She said the rolls of the uninsured could be pared significantly with other parts of the package, including expanded Medicare discounts for some seniors and a change that makes it easier for those with pre-existing medical conditions to get coverage. Dubina nodded as she spoke.
Hull and Dubina also asked the attorneys to chart a theoretical path of what could happen to the overhaul if the individual mandate were struck down but the rest of the package was upheld.
Hull is the one judge on the panel who was appointed to both the district and appellate courts by Clinton. It sounds to me like she’s looking for a way to strike down the mandate while leaving the rest of the statute intact (sounds that way to Politico too), which Roger Vinson famously refused to do in his lower-court decision. More from the LA Times:
“I can’t find any case like this,” said Chief Judge Joel Dubina of the 11th Circuit Court of Appeals. “If we uphold this, are there any limits” on the power of the federal government? he asked.
Judge Stanley Marcus appeared to agree. “I can’t find any case” in the past 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?”
Katyal argued that healthcare is unique and unlike purchasing other products, like vegetables in a grocery store. “You can walk out of this courtroom and be hit by a bus,” he said. And if such a person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care, he said.
That argument, that health care is a “unique” market over which the feds enjoy some sort of Commerce Clause superpower, was the basis of the federal court ruling in Michigan last year that upheld the mandate. I’ve never understood it, though. If we’re all “in” the health-care market at any given moment even if we’re technically not in it, why shouldn’t the feds also be able to mandate what we eat or whether we smoke? Requiring people to eat more nutritiously will reduce obesity, thereby lowering health-care costs and freeing up doctors to treat other patients. Preventative prohibition in the name of regulating “commerce”! Why not draw the line there? Plus, as Randy Barnett notes, letting Congress declare any market “unique” and therefore susceptible to Commerce Clause superpowers is problematic insofar as courts tend not to second-guess congressional findings of fact. If health care is “unique” today, what’s unique tomorrow?
Hopefully we won’t need to find out. Exit quotation from a Cato analyst who attended the oral argument: “In the most important appeal of the Obamacare constitutional saga, today was the best day yet for individual freedom.”