United Liberty

Yesterday in Atlanta the Eleventh Circuit Court of Appeals heard the challenge to ObamaCare filed by Florida and joined over time by 25 other states:

Judges on a federal appeals court panel on Wednesday repeatedly raised questions about President Barack Obama’s health care overhaul, expressing unease with the requirement that virtually all Americans carry health insurance or face penalties.

All three judges on the 11th Circuit Court of Appeals panel questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.

The Atlanta panel 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 suggests the appeals court panel is considering whether to rule against at least part of the federal law to expand health care coverage to tens of millions of Americans.
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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.

In case you don’t remember, the administration was unsuccessful earlier this year as Judge Roger Vinson ruled that the individual mandate, which would force each American to purchase health insurance or a pay a punitive tax, is an unconstitutonal overreach of congressional power provided by the Commerce Clause and struck down entire the Patient Protection and Affordable Care Act due to the lack of a severability clause.

Considering that two of the three judges that participated in yesterday’s hearing were appointed by a Democratic president, I can’t help but be skeptical of news reports that indicate that they seem to be willing to strike down the individual mandate; even though what I’ve read is promising. Over at Cato @ Liberty, Ilya Shapiro, who attended the hearing, largely echos the media:

In the most important appeal of the Obamacare constitutional saga, today was the best day yet for individual freedom.  The government’s lawyer, Neal Katyal, spent most of the hearing on the ropes, with the judicial panel extremely cautious not to extend federal power beyond its present outer limits of regulating economic activity that has a substantial aggregate effect on interstate commerce.

As the lawyer representing 26 states against the federal government said, “The whole reason we do this is to protect liberty.” With those words, former solicitor general Paul Clement reached the essence of the Obamacare lawsuits. With apologies to Joe Biden, this is a big deal not because we’re dealing with a huge reorganization of the health care industry, but because our most fundamental first principle is at stake: we limit government power so people can live their lives the way they want.
[…]
And the 11th Circuit judges saw that. Countless times, Judges Dubina and Marcus demanded that the government articulate constitutional limiting principles to the power it asserted. And countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce. Even Judge Hull, reputed to be the most liberal member of the panel, conducted a withering cross-examination to establish that the individual mandate didn’t help that many people get affordable care, that the majority of people currently without coverage would be exempt from the requirement (presumably due to their income level).

In short, while we should never read too much into an oral argument, I’m more optimistic about this case now than any other.

I’ve seen no timetable for an opinion from the panel, but for now this is the most important court case in the country; nevermind the other active challenges to ObamaCare.