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Judges seem receptive to health care challenge

See lack of precedent for individual mandate

- The Washington Times - Wednesday, June 8, 2011

President Obama's health care law received a chilly reception Wednesday from a federal appeals court that seemed wary of approving a major expansion of government coercion over the economic activity of millions of Americans.

Acknowledging they are breaking new ground in considering this case, the three-judge panel of the 11th U.S. Circuit Court of Appeals sitting in Atlanta questioned whether there is any precedent in more than two centuries in which the Supreme Court has upheld a law that forces individuals to buy a private good or service - in this instance, the individual mandate that every American obtain health insurance.

"If we uphold the individual mandate in this case, are there any limits on Congress' power left?" said Chief Judge Joel Dubina, appointed by President George H.W. Bush, who seemed most hostile to the Obama administration's defense.

The other two judges, both appointed by President Clinton, peppered each side with questions, but signaled their own concerns about the lack of specific precedent for upholding this type of mandate.

"I want to know, going back to the first principles, is there anything out there that actually suggests that Congress can compel a private party to buy a private product on the open market if they're not disposed to do so," Judge Stanley Marcus said.

Wednesday's nearly 2 1/2-hour hearing is the third time an appeals court has heard a case on the issue, which all sides believe will eventually end up in front of the Supreme Court.

Lower court decisions have gone both ways, with some upholding the law and two judges ruling key parts unconstitutional. One of those was district court Judge Roger Vinson, whose January ruling striking down the entire law was being appealed in Wednesday's hearing.

Democrats pushed the Affordable Care Act through Congress last year without any Republican votes and using extraordinary parliamentary tactics, but the tortuous process damaged the law politically, and opened it up to several attacks in the courts, including over whether Congress was acting under its power to regulate interstate commerce or under its broader tax powers.

The law expands coverage for low-income Americans, requires companies to offer employees health insurance or pay a penalty, offers subsidies to low- and middle-income Americans who still lack coverage, and includes the individual mandate that everyone have insurance by 2014.

It also requires insurance companies to drop lifetime benefit caps and restrictions on pre-existing conditions, but it compensates the companies by forcing more people to buy insurance.

The law's passage helped power the tea party movement and spawned a heated debate over constitutional liberties and the limits of congressional power.

But Justice Department lawyer Neal Katyal, arguing on behalf of the Obama administration, said individual liberty is not at issue in the case.

"I know my friends try to get a lot of rhetorical force from it, but at the end of the day maybe their arguments violate the constitution of Ayn Rand, but they don't violate the Constitution of the United States," he said.

Instead, he said Congress is trying to solve the problem of some people without insurance getting emergency care for free today, which shifts burdens to the rest of taxpayers. Since everyone will at some point need health care, he said the government is making sure people are paying their fair share.

"We are not saying the Congress can force someone to buy something. Our point is that people are already buying this good," he said.

Paul D. Clement, a former U.S. solicitor general who argued the case on behalf of 26 states suing to block the law, conceded that most people will seek health care and that the case comes down to whether the government can compel an insurance purchase beforehand.

He said it would be permissible to require a purchase once someone shows up at a hospital or doctor, which prompted Judge Marcus to wonder whether the courts should second-guess Congress' decisions.

"If it's rational, doesn't my job stop at the water's edge?" he said. "Isn't it for the legislative branch to make those kinds of calculations and determinations?"

Mr. Clement, though, said there are better ways to force broader health care coverage, such as incentives.

"They could have done the exact same thing, and they could have done it constitutionally," he said. "Instead, they took the easy way out."

Meanwhile, Judge Frank M. Hull said she accepted the federal government's contention that refusing to buy insurance was still an economic decision.

"This whole inactivity business just doesn't get me very far," she said.

The case is Florida v. Health and Human Services.

Florida Attorney General Pam Bondi, the lead plaintiff in the challenge, said she was encouraged by the way the hearing went.

"Simply put, the federal government failed to justify Congress' decision, for the first time in American history, to force citizens to purchase a product," she said.

On Tuesday, ahead of the hearing, White House adviser Stephanie Cutter defended the law's ends as good public policy and the means as a constitutional way to deal with cost-shifting.

"Individuals who choose to go without health insurance are actively making an economic decision that affects all of us," she wrote in a blog posted on the White House website.

"When people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab. That's why the Affordable Care Act requires everyone who can afford it to carry some form of health insurance," she wrote.

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