ATLANTA – A panel of three federal judges indicated they may be prepared to declare at least part of last year’s health care law unconstitutional, tossing skeptical questions at a top Obama administration lawyer.
The judges in Wednesday’s hearing here did not state plainly that they will overturn the law, but all three inquired – more than once – about whether the law’s requirement that nearly everyone buy insurance by 2014 could be struck down while the rest of the law is upheld. The questions suggested the judges were thinking hard about declaring the mandate unconstitutional.
“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?
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?”
That question is at the heart of the constitutional challenge to the health care law, an argument that initially was waved aside by many legal commentators, but which has now sharply divided the federal courts. So far, three federal district judges have upheld the law and two have ruled it unconstitutional. Three cases now have reached appeals courts, with a fourth appellate panel scheduled to hold a hearing in September.
The current case has gathered the most attention because it involves 26 state attorneys general – all Republicans – who jointly challenged the law. In addition, the 11th Circuit is considered among the most conservative of the federal appellate courts. If any of the appeals courts strikes down the law, the case almost certainly would land at the Supreme Court, perhaps during the election year. The 11th Circuit has been seen by legal experts as one of the more likely to rule against the administration.
Acting U.S. Solicitor Neal Katyal argued the legislative branch can only exercise its powers to regulate commerce if it will have a substantial effect on the economy and solve a national, not local, problem. Health care coverage, he said, is unique because of the billions of dollars shifted in the economy when Americans without coverage seek medical care.
Congress could clearly require that a person who shows up at a hospital without insurance buy it on the spot, he said, and requiring the purchase in advance should not be the decisive difference.
Katyal faced off against former Bush administration Solicitor General Paul Clement, who said, “In 220 years, Congress never saw fit to use this power, to compel a person to engage in commerce.”
Clement also said the judges should strike down the entire law. “You can’t separate out the mandate. We take the position the whole thing falls.”