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.