Posted on 06/08/2011 5:50:39 PM PDT by SeekAndFind
Granted, granted, a tough oral argument is no guarantee of defeat, but the mere possibility of O-Care crashing and burning in the 11th Circuit is tasty enough to be blogworthy. Time magazine makes a good point: Lower-court rulings on the mandate’s constitutionality have tracked with each judge’s partisan leanings, but the 11th Circuit panel is truly bipartisan. Two of the three judges who heard arguments today were appointed to the district court by Reagan, but two of the three were elevated to the appellate court by Clinton. Given that melange of blue and red, you think famous fencesitter Anthony Kennedy is watching this case to see which way things come down?
They might not strike down the entire law, but the AP’s Magic Eightball says all signs point to yes when it comes to the mandate:
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.
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?” Circuit Judges Frank Hull and Stanley Marcus, who were both appointed by President Bill Clinton, echoed his concerns later in the hearing…
Hull also seemed skeptical at the government’s claim that the mandate was crucial to covering the 50 million or so uninsured Americans. She said the rolls of the uninsured could be pared significantly with 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.
Hull and Dubina also asked the attorneys to chart a theoretical path of what could happen to the overhaul if the individual mandate were struck down but the rest of the package was upheld.
Hull is the one judge on the panel who was appointed to both the district and appellate courts by Clinton. It sounds to me like she’s looking for a way to strike down the mandate while leaving the rest of the statute intact (sounds that way to Politico too), which Roger Vinson famously refused to do in his lower-court decision. More from the LA Times:
“I can’t find any case like this,” said Chief Judge Joel Dubina of the 11th Circuit Court of Appeals. “If we uphold this, are there any limits” on the power of the federal government? he asked.
Judge Stanley Marcus appeared to agree. “I can’t find any case” in the past 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?”
Katyal argued that healthcare is unique and unlike purchasing other products, like vegetables in a grocery store. “You can walk out of this courtroom and be hit by a bus,” he said. And if such a person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care, he said.
That argument, that health care is a “unique” market over which the feds enjoy some sort of Commerce Clause superpower, was the basis of the federal court ruling in Michigan last year that upheld the mandate. I’ve never understood it, though. If we’re all “in” the health-care market at any given moment even if we’re technically not in it, why shouldn’t the feds also be able to mandate what we eat or whether we smoke? Requiring people to eat more nutritiously will reduce obesity, thereby lowering health-care costs and freeing up doctors to treat other patients. Preventative prohibition in the name of regulating “commerce”! Why not draw the line there? Plus, as Randy Barnett notes, letting Congress declare any market “unique” and therefore susceptible to Commerce Clause superpowers is problematic insofar as courts tend not to second-guess congressional findings of fact. If health care is “unique” today, what’s unique tomorrow?
Hopefully we won’t need to find out. Exit quotation from a Cato analyst who attended the oral argument: “In the most important appeal of the Obamacare constitutional saga, today was the best day yet for individual freedom.”
If they rule against Obama Care it will throw this illegal law into chaos.
Balderdash. Two liberals and a Bush the Elder appointee = “It’s ALL GOOD!”
Look for the Sixth Circuit to overturn the Eastern District of Michigan and rule it illegal. The Fourth Circuit will overturn the Florida ruling.
The obscenity known as ObamaCare must be repealed by Congress; knocking out a piece here, and a piece there, and maybe a piece just around the corner, is not going to kill this monstrosity. Either the whole thing is knocked out by the courts or the whole thing is repealed by a veto-proof Congress.
bfl
Which would be a very good thing.
RE: The obscenity known as ObamaCare must be repealed by Congress
____________________________________________________________________________
This Congress did just that. The decision got rejected when it reached the Harry Reid controlled Senate.
You have no “Liberty” if you are compelled to do something.
Case closed.
Congress is the House AND the Senate.
I'd like the judges to address the dubious "exemption process" at some point, too!
“And if such a person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care, he said.”
That is absolutely not the case...any ethical American will pay the bill!
Words fail me (since the ones I wish to use wouldn’t be in good taste).
So they are arguing that they can make random taxpayers pay, but they are unable to compel the patient to pay for their care? If you fail to pay for your student loans, the Department of Education will hunt you down with a SWAT team. Why can't HHS borrow the SWAT team.
I am no legal scholar but it seems like this district court will pretty much do what other courts like it have done on politically controversial issues — they pass the buck up to the USSC on a narrow ruling.
If the Florida ruling gets overturned by the Appeals Court, it will be upheld by that same Appeals Court when they hear it en banc, and it will be heard en banc if the Florida ruling is overturned.
The Fourth Circuit will overturn the Florida ruling.
No, it wont. Vinson wrote that finding in such a way as to make it virtually untouchable by any other than SCOTUS.
That would suggest to me that the law that was passed in the 90's, I think, that required hospitals to treat uninsured patients is also unconstitutional.
In fact it would be forced servitude and contrary to the 13th amendment.
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