Judges asking tough questions about Obamacare, individual mandate 

Federal judges hearing arguments yesterday in the nation’s biggest Obamacare case asked some hard questions of the Obamacare administration in the 11th Circuit appeals court.

These exchanges give rise to guarded optimism that Obamacare’s individual mandate might be struck down, but it’s anyone’s guess as to whether the judges will preserve the rest of this massive 2,700-page statute.

Federal appeals are heard by randomly chosen three-judge panels. The panel hearing the Obamacare appeal, Florida v. U.S. HHS, is comprised of Chief Judge Joel Dubina, who was appointed by the first President Bush, and is the most conservative of the three.

Judge Frank Hull is a Clinton appointee, considered a moderate liberal. And Judge Stanley Marcus is a moderate, formerly a federal district judge appointed by President Reagan, but elevated to the circuit court by Clinton. Overall this is a moderate panel.

This was evident in the questions put to the lawyers yesterday. Dubina and Marcus both pressed President Obama’s lawyer, Acting Solicitor-General Neal Katyal, what limits on federal power would endure if the court allowed the individual mandate to survive.

Hull expressed concerns in the opposite direction. Paul Clement’s argument on behalf of the states is that the Constitution’s Commerce Clause allows Congress to regulate economic activity, but not inactivity.

If someone is engaged in business or buying goods or services (such as medicine or going to a doctor’s office), Congress can regulate such activity. But the government cannot compel an individual to buy something.

Hull responded that this distinction didn’t work as far as she was concerned, strongly suggesting she was leaning towards Katyal’s position.

The panel was more skeptical of the argument that they should strike down the Medicaid expansion as unconstitutional. They noted that no court has struck down a federal program as being coercive of the states.

Although they acknowledged the Supreme Court said such limits exist, it’s not clear that they were persuaded Obamacare presented such coercion.

Interesting, though, was the judges’ focus on severability. They asked a number of questions about what other sections would have to fall along with the mandate. This reveals the judges are at least thinking about the issue, and could bode well that at least part of Obamacare could be struck down.

A decision is expected later this year.

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Mark Tapscott

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