Sixth Circuit Hears Oral Argument In Affordable Care Act Lawsuit

Another appellate panel heard arguments on the Constitutionality of the health care reform law this week.

The Sixth Circuit Court of Appeals heard oral arguments earlier this week in the appeal of a case that had rejected the legal challenges to the Affordable Care Act at the District Court level:

By KEVIN SACK

CINCINNATI — A panel of federal appellate judges seemed eager on Wednesday to rule on whether it is constitutional for the Obama health care law to require that uninsured Americans buy medical coverage. But the judges must first decide whether the plaintiffs still have legal standing to sue, after one disclosed that she recently bought health insurance from her employer.

The three judges from the United States Court of Appeals for the Sixth Circuit in Cincinnati heard arguments for 90 minutes on the second challenge to the health care law to reach an appellate hearing. Five lower-level district court judges have ruled on the merits of the challenges, with three upholding the law’s constitutionality and two striking down all or part of it.

The cases are vying for ultimate consideration by the Supreme Court, which is expected to decide whether President Obama’s signature domestic legislation exceeded the bounds of Congress’s constitutional authority to regulate interstate commerce.

One judge, James L. Graham, pressed that question on Wednesday with Neal K. Katyal, the acting United States solicitor general, who is defending the law for the Obama administration.

“Where, ultimately, is the limit on Congress’s power?” the judge asked.

Mr. Katyal responded that the government had never suggested that there were no limits.

“Where are they?” Judge Graham continued. “I want to find them.”

Mr. Katyal then argued that the law’s insurance mandate, which takes effect in 2014, does not so much require individuals to buy coverage as it does regulate the way they pay for health care they will inevitably consume. Without the mandate, Mr. Katyal said, the law’s requirement that insurers provide coverage to all applicants, regardless of their health status, would simply encourage people to buy insurance after they got sick.

“Congress is not regulating the failure to buy something, but the failure to secure financing,” Mr. Katyal said.

Wednesday’s hearing came in a challenge to the law filed by the Thomas More Law Center, a public interest law firm in Ann Arbor, Mich., that describes itself as “the Christian response to the A.C.L.U.” The center primarily takes cases involving Christian expression in the public square. Its health care lawsuit pointedly listed the defendant by his full name: Barack Hussein Obama.

Mr. Katyal began Wednesday’s hearing by arguing that the case should be dismissed because one of the plaintiffs, a Thomas More member named Jann DeMars, bought an insurance policy last October from her employer.

In the original lawsuit, filed in March 2010, Ms. DeMars argued that she was entitled to sue because she was uninsured and would have to make burdensome choices to afford a policy in 2014. Because she now has coverage, Mr. Katyal said, Ms. DeMars can no longer demonstrate any imminent injury, which is required to mount such a challenge.

The government arguably drew a less friendly panel on Wednesday than it did last month at the Court of Appeals for the Fourth Circuit in Richmond, Va., which heard the appeal of a ruling against the insurance mandate. The Fourth Circuit panel consisted of three judges appointed by Democratic presidents, including two by Mr. Obama himself.

The randomly selected Sixth Circuit panel includes two judges appointed by Republicans — Jeffrey S. Sutton, who was named by President George W. Bush, and Judge Graham, who was nominated by President Ronald Reagan to the Federal District Court in Ohio and is on temporary assignment to the appellate bench. The third judge, Boyce F. Martin Jr., was appointed by President Jimmy Carter, a Democrat.

Unlike the hearing last month in the Fourth Circuit, which many interpreted as not going well for ACA opponents, this round of oral argument seems to have gone better:

This case, brought by the Thomas More Legal Center, will almost certainly be decided on the issue of whether the federal government can compel people to engage in commerce — “regulate inactivity.” The government’s theory that “health care is unique” came under harsh attack from Judges Graham and Sutton because it didn’t seem to offer a constitutional (as opposed to factual) limiting principle for federal power. Judge Martin was more circumspect, but he’s considered among the most liberal circuit judges in the country, so all things being equal would probably try to uphold the law (or find a way to decide the case on procedural grounds so as to avoid losing on the merits). Judge Sutton — one of the more conservative jurists nationwide — was also scrupulously neutral, picking at weaknesses in both sides’ presentation and appearing open to a narrow technical decision.

So, at the least, it appears that there may be one vote on the Court for declaring the ACA unconstitutional, but its unclear whether the Court’s decision will ever reach that point. The court could decide to dismiss the case on procedural grounds, or it could rule in a way that allows it to uphold the statute without tossing out several decades of Commerce Clause precedent. We should get a decision on this one by the end of the summer. Next up on the argument document is Florida v. HHS which will be argued before a pane of the 11th Circuit Court of Appeals next week.

You can listen to the arguments to dismiss on procedural grounds here ( 30 minutes), and the arguments on the merits  here (65 minutes).

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. tom p says:

    Let me make a prediction: The 3 judge panel will hold for the plaintiffs. The Feds will appeal for a hearing before the full appeals court. It will be granted aaaaannnndddd…..

    An election will happen. One which wipes out the electoral gains the GOP had in 2010 because they got SUPREMELY stupid and thought they could eliminate Medicare, funding even more tax cuts to the rich, and nobody would notice. Oh yeah, Obama gets re-elected. (Which of the 7 dwarves can beat him?)

    At which point, even if the Supremes find fault with the ACA, the Dems will fix it and pass it and it will be law. Again.

    I used to say this about the Dems: The GOP, the gift that keeps on giving.

  2. Wiley Stoner says:

    Liberals do not believe there is a limit to the power of government. The idea rights are bestowed by our creator, is foreign to them as most do not believe in a creator. I doubt the founders ever intended for the commerce clause be used to force the purchase of a good or service. I do not think one has the right to health care. It is a service which is performed by someone else. If you cannot afford that service, you are not entitiled to it.

  3. lunaticllama says:

    Isn’t the limits of the Commerce Clause much clearer after Lopez and Morrison, i.e. Congress can not use the Commerce Clause to regulate non-economic matters? It’s all very complicated when you have a law to demonize, but it’s not that weird of a concept.

  4. Mike Farrell says:

    http://publicpolicypolling.blogspot.com/2011/06/romney-palin-lead-way.html
    Palin going up in the polls-this is not good news for Mataconis

  5. Neil Hudelson says:

    I agree Wiley. Just like people don’t have a right to modern food. Its something grown by someone else. And water? Really? Do you know how much of our water is owned by individuals and you think you should just be able to drink water whenever your life depends on it? Ridiculous. And don’t get me started on your own life, I mean after all that work your mom and dad had in copulating, you think you can just control your own body?

    Wait..on that last sentence…yeah I think I understand the GOP better now.

  6. Wiley Stoner says:

    I’m sorry but I did not get to read the idiotic statement by the previous poster before I wrote what I commented. Medicare is a PONZI scheme. Period. You pay in less than what you get out. Just how long do you think that will work? Over their lifetime, according to what I read recently, the average person pays in $86k, but they will use about $251K in services. That is simply not sustainable. If you think the lies the donks will tell about this will win the day, good “f”ing luck. I believe Obama would lose the next election to who ever the GOP nominates. 9% unemployment, 1 in 4 houses in foreclosure, gas prices and food prices through the roof. Good luck with that campaign. Tom P. Obama has a record to run on. Huge debt and no way our.

  7. Wiley Stoner says:

    Neil, I pay for the water I use, and there are public watering places, and at least I am not, like you, the result of a homosexual act. You prove beyond a shadow of a doubt stupid cannot be fixed.

  8. An Interested Party says:

    If you cannot afford that service, you are not entitiled to it.

    That’s an interesting line of thinking, considering it is illegal for emergency room personnel to turn away anyone because they cannot pay…

    Palin going up in the polls-this is not good news for Mataconis

    Maybe not, but it’s fabulous news for the president…

  9. wr says:

    Wiley Zels — When you pay for those services, you are using other people’s tax dollars that have been stolen by the government and handed to you in the form of unemployment insurance.

  10. Tsar Nicholas says:

    Interesting panel.

    Sutton is a very good judge. If regarding the SCOTUS we could exchange Sutton for Kennedy or Sutton for any of the left-wing Moonbats we’d be much better off as a country.

    Don’t know much about the lower court guy who’s sitting by designation, but given his advanced age we could be in store for a senior moment, so to speak.

    The Carter nominee, Boyce Martin, of course, is a barking liberal Moonbat who also went at least partially senile probably a decade ago, but in true Democrat fashion likely will continue hearing cases even after he’s clinically brain dead.

  11. Palin going up in the polls-this is not good news for Mataconis

    The prospect of Palin entering the race would provide me with endless material, why would I complain.? Sarah is the gaffetastic gift that keeps on giving

  12. Patrick T. McGuire says:

    One way or another, Obamacare will die. Either it will be declared unconstitutional, or the Republicans will repeal it, or there won’t be any money to fund it. While it’s entertaining, all this legal maneuvering is just going through the motions.

  13. tom p says:

    Good luck with that campaign. Tom P. Obama has a record to run on. Huge debt and no way our.

    Stoner, read your posts. And for the record, It is not my campaign. I have a dozen reasons to vote against Barack Hussein Obama. Problem is, I have 2 dozen reasons for voting FOR him. Starting with Snow White and the 7 dwarves.

    And for the record, Not Obama’s debt. Bush’s tax cuts, Bush’s wars, Bush’s defense spending, Bush’s Medicare expansion, and need I say, Bush’s economy. All voted for by a GOP majority in congress….

    When will you wake up and realize the GOP is giving it to you right up the *ss?

  14. tom p says:

    Patrick, you actually think there will be enuf Repubs in Congress to make a diff? Delusional….

  15. Pete says:

    Tom p; you sound so sure of forecasting the future, how about I buy the lotto tickets, you predict the winner and we split the $100milion?

  16. anjin-san says:

    Liberals do not believe there is a limit to the power of government.

    another righty that was in a coma while Bush vastly increased the size, power, and cost of the federal government.

  17. anjin-san says:

    It’s kinda funny. While the right was crowing about Bush, the “unitary executive” and arguing that his powers as President were nearly without limit, I would remind them occasionally that the next President would have more power, and they might not like what he did with it.

  18. Pete says:

    It’s kinda funny. While the right was crowing about Bush, the “unitary executive” and arguing that his powers as President were nearly without limit, I would remind them occasionally that the next President would have more power, and they might not like what he did with it.

    anjin, I rarely agree with you, but you are right on with this one.

  19. CB says:

    Liberals do not believe there is a limit to the power of government.

    haha, dude, you need to get out more. life outside the echo chamber is actually pretty nice.

    Mr. Katyal then argued that the law’s insurance mandate, which takes effect in 2014, does not so much require individuals to buy coverage as it does regulate the way they pay for health care they will inevitably consume

    as for the law, is that not the real crux of the issue? the inevitable consumption of healthcare?

  20. ej says:

    Patrick,

    “One way or another, Obamacare will die.”

    I wound’t go that far, but yeah one way or another it is going to change. The current system, including the healthcare bill, is not sustainable. Whatever the healthcare system is in ten years, it wont be what currently exists.

  21. ej says:

    anjin-san,

    But are liberals really any different? They seem to have no problem with not only Obama’s assumption of Bush’s power grabs in addition to all of his new ones. Or if it does bother liberals, its not enough to stop them from voting for Obama’s relection. Just as all of Bush’s didnt stop most from voting for him in 2004.

    Very few people actually worry about government power unless is the other team holding it.