Judges are exploring whether there is precedent in upholding law requiring purchases. |AP Photo
By JENNIFER HABERKORN | 6/8/11 4:09 PM EDT
ATLANTA — A federal appeals panel asked pointed questions Wednesday about how much of President Barack Obama’s health care law would have to be struck down if they ruled that its individual insurance mandate is unconstitutional.
But the three 11th Circuit Court of Appeals judges also were receptive to the government’s argument that the health care market is different from all others and needs that kind of regulation — giving the law’s supporters some hope that the appeals panel would side with them.
The judges’ questions were mixed enough to give encouragement to both sides in the oral arguments in the multistate lawsuit, the most significant of the legal challenges against Obama’s health care overhaul.
But supporters of the health law cringed as the judges spent a significant amount of time questioning both sides over how much of the law they would have to void if they struck down the most controversial provision at the center of the suit: the requirement to buy insurance.
Judge Frank Hull asked the federal government at least three times how the court should draw the line, if it concludes the mandate is unconstitutional.
“The government would obviously be somewhat troubled by the questions about severability, which is something that the court only reaches if it were to invalidate one of the provisions,” said Walter Dellinger, a former acting solicitor general who wrote a brief defending the law for Democratic members of Congress.
The suit was brought by 26 states — most led by Republican attorneys general or governors— as well as the National Federation of Independent Business and two individuals. It’s the most high-profile of 30 challenges to the law and considered a likely contender to go to the Supreme Court.
“This is a very difficult case and will ultimately affect all the citizens of this nation,” said Chief Judge Joel F. Dubina.
While several attorneys general on the suit appeared outside the courthouse to express optimism that the panel would uphold the lower court’s ruling, supporters of the law were cautiously optimistic leaving the courthouse, too.
The panel was receptive to the federal government’s claim that the uniqueness of the health market — that just about every person will use it in his or her life whether they want to or not — warrants this type of regulation.
Dubina, who was nominated by former President George H.W. Bush, said he agreed that the market was unique because many consumers can’t guess when they might get sick, but he said that doesn’t make health coverage any different from life, flood or fire insurance.
The judges pressed the government on whether there is any Supreme Court precedent upholding a law requiring a person to purchase something even if he or she wasn’t planning to do so.
But Obama administration lawyers argued that the law is steeped in established authority and that Congress was merely trying to regulate how consumers pay for their health coverage — not whether they have to purchase health insurance, as the law’s opponents argue.
“People are seeking this good already,” said Neal Katyal, the acting solicitor general. “It’s about the failure to pay, not the failure to buy.”
The panel also appeared to mull over the idea that if the government can require consumers to purchase insurance once they get to the hospital, surely they can do it ahead of time.
“The most positive aspect of the argument from the government’s position was the emphasis on timing, which is hardly a question of constitutional magnitude,” Dellinger said.
The states also challenged the law’s expansion of the Medicaid program. The district judge ruled against the states on this part of its suit. They argue that the law’s requirement to accept more people into Medicaid — up from 100 percent of the federal poverty level to 133 percent of the poverty level — is an unfair condemnation of the states’ authority.
The federal government argued that just because the decision to pull out of Medicaid is difficult, it doesn’t mean the choice isn’t there.
“This is about eligibility to a federal program,” Katyal said.
The federal government asked the 11th Circuit to strike down District Court Judge Roger Vinson’s January ruling that the mandate is unconstitutional and the entire law must be invalidated with it.
The panel was made up of a judge nominated by former President George H. W. Bush and two judges nominated by former President Bill Clinton.
The Atlanta courthouse was filled to capacity with more than 100 people before the three hours of arguments got under way.
The states’ suit is one of several being appealed at the circuit court level this spring. The 4th Circuit Court heard appeals in the Virginia and Liberty University cases in May, and the 6th Circuit heard an appeal from the Thomas More Law Center earlier this month. The 9th Circuit is planning to take up a suit from the Pacific Justice Institute next month.
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