Wednesday, June 8, 2011


Judges sharply challenge healthcare law

Skeptical questions from three federal judges in Atlanta suggest they may be ready to declare unconstitutional all or part of the healthcare law promoted by the Obama administration and passed last year by Congress.

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.

The Atlanta court is reviewing a decision of Judge Roger Vinson in Pensacola, Fla. In January, he struck down the entire 2,700-page law as unconstitutional.

Dubina, from Alabama, was first appointed to the bench by President Reagan and was elevated to the appeals court by President George H.W. Bush. Hull, from Georgia, was appointed by President Clinton. The third member of the panel, Marcus, from Florida, was first appointed as a district judge by Reagan, but Clinton appointed him to the appeals court.

Already, appeals courts in Richmond, Va., and Cincinnati have heard legal challenges to the healthcare law, and a fourth hearing is set for September in the U.S. Court of Appeals for the District of Columbia.

The challengers hope that at least one of those appeals courts strikes down the law as unconstitutional. Such a ruling would almost certainly require the Supreme Court to take up the case and decide the issue.

Clement hammered away at the theme that the government mandate to have health insurance was unlike any law in American history. "In 220 years, Congress never saw fit to use this power, to compel to engage in commerce."

Despite the skeptical questions that greeted the administration's advocates, the three judges did not clearly signal how they intend to rule.

Hull pointed out that the Supreme Court has upheld laws that involve regulation of economic matters, and the decision of whether to buy health insurance is clearly "an economic decision," she said.

Katyal said that even the challengers agreed that persons who show up at a hospital seeking treatment could be required to buy insurance on the spot. If so, he said, why can't the government require they buy it in advance?