11th Circuit Judges Skeptical Of Constitutionality Of Affordable Care Act

It was a good day in Court for opponents of the Affordable Care Act.

Oral argument in Florida v. HHS before a panel of the 11th Circuit Court of Appeals wrapped up just a few hours ago, and from the initial reports it seems clear that the judges were skeptical of the arguments of the government in favor of the Affordable Care Act:

A top Obama administration lawyer defending last year’s healthcare law ran into skeptical questions Wednesday from three federal judges here, who suggested they may be ready to declare all or part of the law unconstitutional.

Acting U.S. Solicitor General Neal K. Katyal faced off against former Bush administration Solicitor General Paul Clement in what has become the largest and broadest challenge to the healthcare law. In all, 26 states and the National Federation of Independent Business joined in urging the judges to strike down the law.

(…)

And in an ominous sign for the administration, the judges opened the arguments by saying they knew of no case in American history where the courts had upheld the government’s power to force someone to buy a product.

That argument is at the heart of the constitutional challenge to the healthcare law and its mandate that nearly all Americans have health insurance by 2014.

“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.

Katyal argued that Congress could reasonably decide that since everyone will likely need medical care at some time in their lives, everyone who can afford it should pay part of the cost. And he said the courts should uphold the law under Congress’ broad power to regulate commerce in this country.

Judge Frank Hull, the third member of the panel, repeatedly asked the lawyers about the possible effect of the court striking down the mandate, while upholding the rest of the law. She said the government had exaggerated the importance of the mandate. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.

Law Professor Ilya Shapiro was in the coutroom and wrote about the arguments for The Cato Institute’s blog:

In the most important appeal of the Obamacare constitutional saga, today was the best day yet for individual freedom.  The government’s lawyer, Neal Katyal, spent most of the hearing on the ropes, with the judicial panel extremely cautious not to extend federal power beyond its present outer limits of regulating economic activity that has a substantial aggregate effect on interstate commerce.

As the lawyer representing 26 states against the federal government said, “The whole reason we do this is to protect liberty.” With those words, former solicitor general Paul Clement reached the essence of the Obamacare lawsuits. With apologies to Joe Biden, this is a big deal not because we’re dealing with a huge reorganization of the health care industry, but because our most fundamental first principle is at stake: we limit government power so people can live their lives the way they want.

(…)

In short, while we should never read too much into an oral argument, I’m more optimistic about this case now than any other.

The ruling in this case was more far reaching than any of the other cases that have ruled on the ACA’s constitutionality. Not only did Judge Vinson strike down the individual mandate, he struck down the entire law. For that reason alone, the case is both stronger and more important than the cases pending in the 4th and 6th Circuit. More importantly, this case does not suffer from any of the procedural defects present in the other cases, which means that the Court of Appeals will be required to rule on the merits of the case itself rather than deflecting the issue by ruling on a procedural matter. Of all the cases that could potentially reach the Supreme Court, then, this is the most important one.

If the Court sticks to normal practice, we should get a ruling some time by the end of summer if not earlier. At that point, it’s most likely a straight trip to Washington and a probable Supreme Court oral argument in early 2012.

The oral argument in this case will be available on C-Span’s website soon, and will also be broadcast on C-Span at 8pm tonight. I’ll post embeddable video when the opportunity arises.

 

FILED UNDER: Health Care, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Chad S says:

    It cracks me up when bloggers like Shapiro wave around terms like “freedom” and “liberty”–especially on the concept of the individual mandate. Where was she when this was a big GOP idea for health care reform lol. Or when Scalia said that non-economic activities can be regulated if they effect an economic activity?

  2. Vast Variety says:

    If the law is declared unconstitutional on the grounds that the government can’t force you to buy a product I wonder if that would set precedence that could be used in a case against state mandated auto insurance.

  3. legion says:

    It sounds like the case will turn on the definition of “product”. Technically, the gov’t can’t force you to buy water or electricity either, but they can force you to buy it from one local utility if you get it at all. So you can stay “off the grid” if you want, but if you want turn on a light, open a tap, or get treated in a hospital, you’re going to have to engage in economic activity with a gov’t-regulated system of some sort…

  4. hey norm says:

    “…they knew of no case in American history where the courts had upheld the government’s power to force someone to buy a product…” this is the definition of specious argument. the government (ACA) is protecting me from damage by those who abdicate responsibility by not purchasing insurance. in washington state studies have shown that $900 is added to the yearly health costs of those who are insured by the uncompensated costs of the un-insured.
    no matter – it will come down to whether or not scalia can abide by his previous decisions on inteerstate commerce, or if he does his master’s (koch bros) bidding and reverses himself.

  5. Brett says:

    I’ll be rather depressed if the Supreme Court ends up striking down the entire law, because I’ll lose my health insurance (I get it through my father’s insurance because of the law allowing you to keep your parents’ insurance until you’re 26). There were some decent individual policies I found, but they’re all much more expensive.

    Simply losing the Mandate would not be the end of the world, although it would be a problem over time. Hypothetically, the Democrats could just change the nature of the mandate to get states to implement it in exchange for federal money they can’t afford to reject.

    If the law is declared unconstitutional on the grounds that the government can’t force you to buy a product I wonder if that would set precedence that could be used in a case against state mandated auto insurance.

    Probably not. The states have much more extensive liberty to regulate, and can do things that would put the Federal government on shaky constitutional ground.

    To change that, you’d have to write a federal law that actually forbids coercing people into purchasing a product, then wait and see if it gets struck down from the inevitable challenges by state attorney-generals.

  6. hey norm says:

    keep in mind that choosing not to take action is in fact an action.

  7. Jay Tea says:

    Brett, you don’t want to buy auto insurance? Fine. Don’t own a car. Or, if you do, don’t register it and drive it on public roads.

    Likewise, you don’t want to pay for health insurance? Fine. Don’t live.

    J.

  8. Tsar Nicholas says:

    An interesting appetizer, but the main course will be at Chez Scotus.

    It’ll all come down to Anthony Kennedy, I presume. That’s not entirely reassuring, to say the least.

    As for the politics of all this, hell, by next fall every Democrat not named Obama and not in a guaranteed or unopposed contest will be running against Obamacare. For the simple reason that it’s an abomination. Everyone with a functioning cerebrum knows that. Even Democrats know that. That’s why pretty much every major labor union out there already has asked for and obtained from HHS compliance waivers. Nobody wants this dreck.

    It’s also a political loser. Just ask the hundreds of Democrats at the state and federal levels who were jettisoned from their offices last November. This time around you’ll have even multi-term incumbent Democrats running paid ads against Obamacare. Even if they voted for it. Nobody wants to fall on their sword for an empty suit and a sick joke of a health law.

  9. Pug says:

    Well, I guess the upside is that millions will continue to have the freedom to live without health insurance.

    Must be great to be truly free.

  10. Yes, it is great to be truly free if you understand and accept what liberty is and what it is not.

  11. wr says:

    Yes, Charles, we know. Liberty is dying of cancer because you can’t afford medical insurance with the knowledge that rich people get tax cuts.

  12. Jay Tea says:

    “Freedom is the right to be held responsible for one’s actions.”

    wr, apparently, doesn’t believe in the second part of that.

    Freedom without responsibility isn’t freedom, it’s license.

    If people don’t have the right to make their own decisions, even bad ones, then they will likely NEVER learn how to make good decisions.

    J.

  13. Pete says:

    Norm:

    or if he does his master’s (koch bros) bidding and reverses himself.

    Could you provide some evidence to substantiate your assertion?

    keep in mind that choosing not to take action is in fact an action.

    I believe this is highly debatable and could be easily debunked by someone much smarter than I am.

  14. wr, yeah, you interpret my words so well. Thanks. And apparently you think it is alright to turn some people into slaves for others, because you’re going to make sure no one dies of cancer. Is that how your logic works?

  15. Pete says:

    Jay:

    If people don’t have the right to make their own decisions, even bad ones, then they will likely NEVER learn how to make good decisions.

    Do you suppose statist elites actually desire this outcome so they, the elites, can play “God?”

  16. OzarkHillbilly (used to be tom p) says:

    Brett, you don’t want to buy auto insurance? Fine. Don’t own a car. Or, if you do, don’t register it and drive it on public roads.

    Likewise, you don’t want to pay for health insurance? Fine. Don’t live.

    J.

    Yeah Brett, just go ahead and die, will you? However, there is this slight technicallity of a law pushed thru by a …. ohh never mind. I will no doubt be wrong about some detail.

    Brett? Just die. Better yet? Jay, die. And shut up while you are doing it. (Jay, you DO know you are dying, don’t you?) Do so silently… please… save us the pain of your angst….

    I really don’t care…. Unless it costs ME money.

  17. Southern Hoosier says:

    Would Comrade Obama require illegal immigrants to buy heath care or would he give them an exemption like his other supporters?

  18. OzarkHillbilly (used to be tom p) says:

    keep in mind that choosing not to take action is in fact an action.

    I believe this is highly debatable and could be easily debunked by someone much smarter than I am.

    Pete, I am not half as smart as anyone, but I can win a debate any time any day that an inaction is, in fact, an action.

  19. OzarkHillbilly (used to be tom p) says:

    for clarity, Pete: One can not choose to be null and void. One either exists (in which case one makes choices) or one does not exist (in which case…. I am wasting my breath, or maybe I am talking to Sarah Palin…. in which case I am wasting my breath…)

    To EMPHASIZE: All those who chose not to pay into a health insurance plan: If you do not like the long horrible death awaiting you….

    I have a .38 slug that will fix it for you (You WILL have to self-administer)

  20. tom p, your mistake is in confusing a choice I may be faced with with an action, any action, you insist I must make. We’ll leave the fact that I don’t want to accept your choice for me alone for the moment, but I digress. Anyway, these are not the same things. It’s like saying I’ve taken an action to live every fracton of a second I don’t commit suicide, when considering suicide, or going on with life, doesn’t even enter my consciousness. Sorry to be morbid, but while you’re wishing people dead it seemed appropriate. If you don’t like the suicide analogy, substitute just about anything you could be doing, e.g., jumping up and down on one leg, or giving my car keys and a bottle of whiskey to a teenager, instead of what you are doing.

    If you are going to push the car insurance analogy, it means you really are trying hard not to understand.

  21. Southern Hoosier says:

    OzarkHillbilly (used to be tom p) says:
    To EMPHASIZE: All those who chose not to pay into a health insurance plan: If you do not like the long horrible death awaiting you….

    If we buy into Obamacare, does that mean we get a quick and painless death? Comrade Obama will gives us the final pill and pulls the plug? Those that don’t pay in get to die a natural death?

  22. wr says:

    Yes, Charles, paying taxes to support the country you claim to love is exactly the same as slavery.

  23. Jay Tea says:

    Note to self: put Ozark on the “I’m too stupid to make my own decisions, so I want the government to make them for me and everyone else!” list.

    I don’t mind irresponsible, stupid idiots. I do mind irresponsible, stupid idiots who insist that EVERYONE be treated like irresponsible, stupid idiots so they don’t have to admit that they’re irresponsible, stupid idiots.

    J.

  24. Pete says:

    Ozark:

    Pete, I am not half as smart as anyone, but I can win a debate any time any day that an inaction is, in fact, an action.

    It is nice to see you admit you are not half as smart as anyone, but you sound more smug than most. I’m happy you are secure in your belief, but I don’t buy your assertion.

    My thoughts are my own and unless I act on them, I have taken no action. I can have hundreds of thoughts during the day and sit on the couch doing nothing. Dreams are thoughts; do they constitute action?

  25. Nightrider says:

    Huh? The federal government makes me buy all kinds of things I don’t want to. War in Iraq, pointless expensive surgeries for terminally ill people, subsidies for people to live and grow crops in the desert. It is called TAXES. There is no question at this point that courts would allow the govt to tax us and then provide us with health care. If they have the power to do that, then isn’t this a lesser exercise of power? This whole debate seems like political theater. I mean really, does a single person who has signed any of these briefs or funded the litigation not already have health insurance?

  26. Wiley Stoner says:

    If we are going to use tax dollars to support doctors (which is what obama care does as doctors are the ones performing the service) when do we get around to supporting the lawyers? After all, if you live you will need an attorney sometime in your life. Most of the dips here probably think the Second Amendment is about self protection.

  27. Davebo says:

    I don’t mind irresponsible, stupid idiots.

    Of course you don’t Jay. Everyone has to look in the mirror occasionally.

  28. Wiley Stoner says:

    Night, if you want a product or a service, go out and earn the money necessary to get that product or service. I wonder what other goods or services you feel you are entitled to? Most of the things (not all, by far) our taxes pay for are constitutionally mandated things the government must or can do. Making me buy health care insurance is not one of them. I am somewhat surprised there are so many people who want to open this door. Look what happened to education once the government got involved. Remedial english and math at college level.

  29. An Interested Party says:

    Most of the things (not all, by far) our taxes pay for are constitutionally mandated things the government must or can do.

    Oh, like those unemployment checks you recieved…

  30. sam says:

    “My thoughts are my own and unless I act on them, I have taken no action. I can have hundreds of thoughts during the day and sit on the couch doing nothing. Dreams are thoughts; do they constitute action?”

    Guys, that line of argument, that the government cannot legislate against inaction will not be, in the end, the point upon which the ACA is sustained or not. Think Necessary and Proper…

  31. wr, it’s not about paying taxes, it’s about no level of taxation ever being enough to satisy a need based delivery system. You can’t just keep borrowing $1.5T a year. And then there’s the unilateral price controls that the government will impose on anyone in the health care industry. But hey, their hearts are pure so I’m sure it will all work out.

  32. Fog says:

    I think it’s ironic that the so-called libertarians are fighting tooth and nail against the only viable private business solution to the health insurance coverage issue, namely the individual mandate. Having a mandate is the only way insurers can afford to insure the sick and the elderly. On their own, those people cannot get affordable insurance because their premiums can’t possibly cover their medical expenses. The government is therefore forced to step into the breach and care for the sick and elderly so we won’t have to step over Aunt Ida on the sidewalk (we decided not to be India a long time ago).
    The individual mandate IS the libertarian solution to the health insurance problem. That was Gov Romney’s position in Massachusetts, and he was right.

  33. On last thing, and all snark aside, you cannot address the health care problems by attacking the price of health care. You can only do so by attacking the cost of health care. If you only attack the price of health care while letting the cost continue to fluctuate you are going to see the demand keep rising while the supply disappears. I maintain that Obamacare is a command economy solution which nominally is focused on the price of health care rather than the cost of health care.

    If you attack the cost of health care the price will fall so long as their is competition, i.e., free markets. There are many ways to attack the costs of health care including tort reform, regulatory improvements, fixing the third party payment problems, tax policy changes, removing the AMA’s monopoly over certification, etc.

  34. I think it’s ironic that the so-called libertarians are fighting tooth and nail against the only viable private business solution to the health insurance coverage issue, namely the individual mandate. Having a mandate is the only way insurers can afford to insure the sick and the elderly.

    Speaking as a libertarian, I never thought it was an insurers’ job to insure the sick and elderly unless they were paying the rates the insurance company actuarially determined to offer such coverage. But perhaps there is another form of libertarianism that I am unfamiliar with where insurance companies are forced to cover everyone at prices determined by someone else regardless of cost.

  35. Stan says:

    The key article in the health care debate is “It’s the prices, stupid”, by Anderson, et al (Health Affairs, Vol. 22 (3), 2004), which compares American and European prices for medical procedures and the cost of medical care in general. One of the co-authors is Uwe Reinhardt, probably the leading medical economist in the country. Obviously you know something he doesn’t. You should call him to point out his mistakes. I don’t know his phone number, but he teaches at Princeton and you could reach him without difficulty. I’d be interested in finding out what he says when he learns about his mistakes.

  36. Scott O. says:

    “It’s the prices, stupid” is online. I’ll have to read this later.

    http://content.healthaffairs.org/content/22/3/89.full.pdf

  37. Dave Schuler says:

    It’s a floor wax and a dessert topping.

    We can’t solve the problems that face us with our healthcare system without attacking both the supply side and the demand side of the equation.

  38. SKI says:

    Seems like an exercise in crystal ball reading – everyone sees what they want. Contrast Doug’s take with TPM’s: http://tpmdc.talkingpointsmemo.com/2011/06/inactivity-my-a-judge-dismisses-key-argument-of-health-care-reform-foes.php?ref=fpa

    The three-judge panel in the case, brought by 26 mostly Republican states and others, posed tough questions to both plaintiffs and defendants and made it clear they found merit in arguments from both sides. But in a brief exchange with plaintiffs’ attorney Paul Clement, one of the judges — Bill Clinton appointee Frank Hull — dismissed one of health care reform foes’ key arguments out of hand.

    Specifically, Hull cast aside the plaintiff’s claim that by compelling non-participants in the insurance industry to buy health insurance, it regulates “inactivity.”

    “[T]his case comes down somewhat to whether or not the decision — because you are making a decision, and let me put aside activity and inactivity. Don’t call my economic decisions I’m making inactivity. I consider it inactivity. The activity/inactivity [distinction] doesn’t help me personally,” she said.

  39. Ok, I read the article and found it wanting, at least with respect to it addressing the issues of cost rather than price. I know, how dare I argue with a policy expert from Pinceton, but here goes. Ultimately, all they did was take the aggregate spending divided by the aggregate number of services delivered and note that things cost more in the US. Well, I agree, they do cost more, but as to why they cost more, it is not addressed at all in this article except in passing allusions to note that people with more income tend to, wait for it, spend more.

    Anyway, here are a few questions about the article or the inferences made from it:

    1. Are the health care industries in the US phenomonally more profitable than those in the other OECD countries? If not, then perhaps there is something to the cost issues after all, since any discrepancy in price should show up as profit, ceteris parabis. And yes, I know significant chunks of the preferred OECD systems operate as non-profits, so perhaps such comparisons are difficult, but not impossible.

    2. There’s some real hand waving going on when it comes to things like MRIs and CAT scanners. As noted the US has a lot of these and as a result they get used a lot more — and they are relatively expensive. Perhaps if we limited the number of these machines in the US as they do in other countries the US per service charges might decline and US waiting lists could start to resemble those of countries whose systems are so admired.

    3. Perhaps Canada would have shorter average hospital stays if patients hadn’t spent so much time waiting for treatment, which infers that quicker (though perhaps more expensive) treatment in the US for many has benefits that aren’t easily measured in dollars alone.

    4. The authors noted that the US could use more doctors. I concur. But doesn’t that smack of, dare I say it, competition You know, one of those free market ideas to help reduce prices by increasing supply.

    5. It’s hard to take too seriously any results that compare the US to, say, Luxembourg or Iceland on anything.

    6. Does anyone know how many John Edwards’ there are in the other OECD countries, or more simply, what the malpractice insurance premiums are in the other OECD countries? Seems like that has to be taken into cosideration when stating that it is all about prices and not costs.

    Bottom line, I think the final sentence is not justified from the material presented, though YMMV.