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.