Judges Question Obamacare

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 judges in Atlanta raised questions about  Barack Obama's health care overhaul, expressing unease with the requirement that virtually all Americans carry health insurance or face penalties.

Chief Judge Joel Dubina opened the proceedings and erased any doubts Obamacare has a severe challenge in court.  "I can't find any case like this," Dubina said. "If we uphold this, are there any limits" on the power of the federal government?

Judge Stanley Marcus chimed in: "I can't find any case" in the past, he said, 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?"

The law's requirement that nearly everyone buy health insurance by 2014 is the question at the heart of the constitutional challenge. The argument that the mandate exceeds Congress' power initially was waved aside by many legal commentators, but it has now sharply divided the federal courts.

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.

The questions from the bench quickly confirmed that advance billing, as acting U.S. Solicitor Gen. Neal Katyal faced off against former Bush administration Solicitor Gen. Paul Clement. Katyal argued that healthcare was unique and unlike the purchase of other products, like vegetables in a grocery store.

Katyal argued that Congress could reasonably decide that because everyone will probably 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.

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.

Clement said, "In 220 years, Congress never saw fit to use this power, to compel a person to engage in commerce."

Judge Frank Hull, the third member of the appellate panel, repeatedly asked the lawyers about the possible effect of striking down the mandate while upholding the rest of the law. She said the government had exaggerated the importance of the mandate because other provisions of the new law would mean that most of the 50 million people currently without insurance would be covered after the law took effect.

Usually, when passing a complex law, Congress includes a provision known as a severability clause that says that if one part of the law is struck down, the rest can stand. The House included such a provision in its healthcare bill, but it was not included in the Senate version. And in the last-minute scramble, the House adopted the Senate's version.

Both sides agreed that the court faced an all-or-nothing decision.

Obamacare is unconstitutional.  The judges should rule it unconstitutional.  America needs some changes to health care.  We do not need socialized health care and that is what Obamacare is.

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