Appeals court hears another challenge to health care law

June 9, 2011

By Greg Bluestein, Associated Press

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

All three judges — two Democratic appointees and one Republican appointee — on a panel of the US Court of Appeals for the 11th Circuit questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.

The Atlanta panel did not indicate when it would rule on the lawsuit, brought by 26 states, a coalition of small businesses, and private individuals who urged the court to side with a Florida judge who struck down the law.

But during almost three hours of oral arguments, the judges asked pointed questions about the so-called individual mandate, which the federal government says is needed to expand coverage to tens of millions of uninsured Americans. With challenges to the law before other federal appeals courts, lawyers expect that its fate will ultimately be decided by the US Supreme Court.

Chief Judge Joel Dubina, who was tapped by 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?’’ Judges Frank Hull and Stanley Marcus, both appointed by President Clinton, echoed Dubina’s concerns later in the hearing.

Acting US Solicitor Neal Katyal sought to ease their concerns by saying the legislative branch can regulate commerce only if it will have a substantial effect on the economy and solve a national, not local, problem. Health care, he said, is unique because of the billions of dollars involved when Americans without coverage seek medical care.

“That’s what stops the slippery slope,’’ he said.

Paul Clement, a former US 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 position that the mandate is crucial to covering 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 preexisting medical conditions to get coverage.

Hull and Dubina separately asked the lawyers on both sides to focus on a particular outcome: What could happen to the overhaul if the individual mandate were invalidated but the rest of the package were upheld?

Parts of the overall law should still survive, said Katyal, but he warned the judges they would make a “deep, deep mistake’’ if the insurance requirement is deemed unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because their lack of coverage shifts $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. 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.

The 11th Circuit is not the first appeals court to hear arguments about the constitutionality of the health care overhaul, as panels in Cincinnati and Richmond have both heard similar legal challenges to the law within the last month. But legal observers say the Atlanta panel’s decision could be the most pivotal because the ruling it is considering, by US District Judge Roger Vinson of Florida, is seen as the broadest assault on the law.

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