ATLANTA — A panel of three federal judges indicated they may be prepared to declare at least part of last year's health care law unconstitutional, tossing a barrage of skeptical questions at a top Obama administration lawyer.
The judges in Wednesday's hearing here did not state plainly that they will overturn the law, but all three inquired — more than once — about whether the law's requirement that nearly everyone buy insurance by 2014 could be struck down while the rest of the law is upheld. The questions suggested at a minimum that the judges were thinking hard about declaring the mandate unconstitutional.
"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?
Judge Stanley Marcus appeared to agree. "I can't find any case" 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?"
Acting U.S. Solicitor Neal Katyal sought to ease their concerns by saying the legislative branch can only exercise its powers to regulate commerce 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.
The question of the individual mandate is at the heart of the constitutional challenge to the health care law, an argument that initially was waved aside by many legal commentators, but which has now sharply divided the federal courts. So far, three federal district judges have upheld the law and two have ruled it unconstitutional. Three cases now have reached appeals courts, with a fourth appellate panel scheduled to hold a hearing in September.
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.
Health care unique
The questions from the bench quickly confirmed that advance billing as Katyal faced off against former Bush administration Solicitor General Paul Clement. Katyal argued that health care is unique and unlike the purchase of 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 an ill or injured person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care.
Katyal argued that Congress could reasonably decide that since everyone will likely 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.
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 will mean that most of the 50 million people currently without insurance will be covered once the law goes into 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 health care 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 faces an all-or-nothing decision.
Katyal called the individual mandate the cornerstone of the law's aim to regulate and reform the insurance market. The new law requires insurers to take patients with pre-existing conditions. That rule could not work if people could wait to buy insurance until they have a heart attack or are diagnosed with cancer, he said.
Clement also said the judges should strike down the entire law. "You can't separate out the mandate. We take the position the whole thing falls," Clement said.