- Associated Press - Wednesday, June 8, 2011

ATLANTA (AP) — Judges on a federal appeals court panel on Wednesday repeatedly raised questions 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 on the 11th U.S. Circuit Court of Appeals panel questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates. The panel is made up of two Democratic appointees and one Republican appointee.

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 Florida judge who struck down the law. And it’s never easy to predict how an appeals panel will decide.

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 other challenges to the law before other federal appeals courts, lawyers expect its fate ultimately will be decided by the U.S. 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?” U.S. Circuit Judges Frank M. Hull and Stanley Marcus, who both were appointed by President Bill Clinton, echoed his concerns later in the hearing.

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

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

Paul Clement, a former U.S. solicitor representing the states, countered that the federal government should not have the power to “compel you from buying coverage.” He said lawmakers have clearly abused a power that for “220 years Congress never saw fit to use.”

Judge Hull also seemed skeptical of 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. Judge Dubina nodded as she spoke.

Judge Hull and Judge Dubina also asked the lawyers 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.

Much of the remaining portions of the law should still be allowed to stand, Mr. Katyal said, but he warned the judges they would make a “deep, deep mistake” if the insurance requirement were found to be unconstitutional.

Mr. Clement, however, argued that the insurance requirement is the “driving force” of the broader package.

“If you take out the hub, the spokes will fall,” he said.

Judge Marcus, meanwhile, said the case struck him as an argument over individual liberties, but he 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 federal health care overhaul, as panels in Cincinnati and Richmond both have 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 by U.S. District Judge Roger Vinson of Florida is considered the broadest assault yet on the law.

While a Republican-appointed federal judge in Virginia struck down the requirement that nearly all Americans carry health insurance, Judge Vinson invalidated the entire law, from the Medicare expansion to a change that allows adult children up to age 26 to remain on their parents’ insurance. Three federal judges, all Democratic appointees, have upheld the law.

The arguments unfolded in what’s considered one of the nation’s most conservative appeals courts. But the randomly selected panel represents different judicial perspectives. None of the three is considered either stalwart a conservative or an unfailing liberal.

Judge Dubina, who first was tapped to the bench as a federal magistrate in 1983, is not considered to be as reflexively conservative as some of his colleagues. But he’s under particular scrutiny because of his daughter’s outspoken opposition to the health care overhaul. U.S. Rep. Martha Dubina Roby, a Montgomery, Ala., Republican elected in November, voted to repeal the health care ban because she said it was “less about providing health care for all citizens and more about expanding federal government.”

The other two judges aren’t easy to pin down either. Judge Marcus first was nominated by President Ronald Reagan to serve on the Florida bench after several years as Miami’s lead federal prosecutor; he later was elevated by Mr. Clinton. And Judge Hull, a former county judge in Atlanta, is known for subjecting both sides of the counsel table to challenging questions.

A crush of people gathered outside the 11th Circuit nearly three hours before the arguments were held to guarantee a spot, and the court opened an adjoining courtroom for the spillover crowd. The cramped room was packed with high-profile lawyers and politicians, including Georgia Attorney General Sam Olens, who sat in the front row. In a rare move, the court decided to sell $26 audiotapes of the arguments for those who missed out.

As the arguments took place, about 75 people staged a rally outside the downtown Atlanta building urging the appeals court to strike the law down, waving signs including one that read, “Hands Off My Health Care.”

When the panel does issue a decision — and it could be months — there’s a chance the full 11-judge court could decide to review the ruling. But everyone in the courtroom — the judges included — knew the debate would eventually land in the Supreme Court.

“I doubt this is the last time we’ll be arguing this case,” Judge Dubina said. “Maybe next time we’ll be in Washington.”

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