Three federal appeals judges expressed unease with a requirement that virtually all Americans carry health insurance or face penalties, as they repeatedly raised questions about President Barack Obama's health care overhaul.
At a Wednesday hearing, the three judges on the 11th Circuit Court of Appeals panel in Atlanta questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.
The judges did not immediately rule on the lawsuit brought by 26 states, a coalition of small businesses and private individuals who urged the three to side with a federal judge in Florida who struck down the law.
But the pointed questions about the so-called individual mandate during almost three hours of oral arguments suggest the panel is considering whether to rule against at least part of the federal law to expand health coverage to tens of millions of Americans.
Federal appeals courts in Cincinnati and Richmond have heard similar legal constitutional challenges to the law within the last month, and lawyers on both sides agree the case is headed for the U.S. Supreme Court.
At issue Wednesday was a ruling by U.S. District Judge Roger Vinson of Florida to invalidate the entire law, from the Medicare expansion to a change that allows adult children up to age 26 to remain on their parents' insurance. The government contends that the law falls within its powers to regulate interstate commerce.
Chief Judge Joel Dubina, who was tapped by Republican President George H.W. Bush, struck early by asking the government's attorney "if we uphold the individual mandate in this case, are there any limits on Congressional power?" Circuit Judges Frank Hull and Stanley Marcus, who were tapped by Democratic President Bill Clinton, echoed his concerns later in the hearing.
Acting U.S. Solicitor Neal Katyal sought to ease their concerns by saying 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.
"That's what stops the slippery slope," he said.
Paul Clement, a former U.S. solicitor representing the states, countered that the federal government should not have the power to compel residents to engage in commercial transactions. "This is the case that crosses the line," he said.
Hull also seemed skeptical about the government's claim that the mandate was crucial to covering most of the 50 million or so uninsured Americans. She said the rolls of the uninsured could be pared significantly through other parts of the package, including expanded Medicare discounts for some seniors and a change that makes it easier for those with pre-existing medical conditions to get coverage. Dubina nodded as she spoke.
The appeals court panel, which did not indicate when it would rule, has several options. But Hull and Dubina asked the lawyers on both sides to focus on a particular outcome: What could happen to the overhaul, they asked separately, if the individual mandate were invalidated but the rest of the package were upheld?
Parts of the overall law should still survive, said government lawyer Katyal, but he warned the judges they'd make a "deep, deep mistake" if the insurance requirement were found to be unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.
Clement, however, argued that the insurance requirement is the "driving force" of the broader package, which he said violates the Constitution's legitimate authority. Without it, he said, the rest of the package should collapse.
"If you take out the hub, the spokes will fall," Clement said.
Marcus, meanwhile, said the case struck him as an argument over individual liberties, but questioned whether the judicial branch should "stop at the water's edge" or intervene.
So far, three Democratic-appointed federal judges have upheld the health care law and two Republican-appointed judges, including Vinson, have ruled against it.
Wednesday's arguments unfolded in what's considered one of the nation's most conservative appeals courts. But the randomly selected panel represents different judicial perspectives. None of the three are considered either stalwart conservatives or unfailing liberals.
Dubina, who came to the bench as a federal magistrate in 1983, is not considered to be as reflexively conservative as some of his colleagues. But he's under particular scrutiny because of his daughter's outspoken opposition to the health care overhaul. U.S. Rep. Martha Dubina Roby, a Montgomery, Ala., Republican elected in November, voted to repeal the health care ban because she said it was "less about providing health care for all citizens, and more about expanding federal government."
Marcus was nominated by Republican President Ronald Reagan to serve on the Florida bench after several years as Miami's lead federal prosecutor; he was later elevated by Clinton. And Hull, a former county judge in Atlanta, is known for subjecting both sides of the counsel table to challenging questions.
A crush of people gathered outside the 11th Circuit nearly three hours before the arguments were held to guarantee a spot, and the court opened an adjoining courtroom for the spillover crowd. The cramped room was packed with high-profile attorneys and politicians, including Georgia Attorney General Sam Olens, who sat in the front row. In a rare move, the court decided to sell $26 audiotapes of the arguments for those who missed out.
As the arguments took place, about 75 people staged a rally outside the downtown Atlanta building urging the appeals court to strike the law down, waving signs including one that read "Hands Off My Health Care."
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