The Ever Weakening Case For Obamacare

As the legal case for Obamacare makes its way up to the Supreme Court, both sides have been ferreting out their legal defense of their positions.

Legal scholars have noted that the Obama Administration’s defense of their massive health care plan has changed over time. Originally the government was arguing that the law was regulating the mental activity of whether or not to purchase insurance. But now the argument is that it’s regulating the activity of obtaining health care.  The shifting defense should raise doubts about the Obama team’s confidence of winning in court.

The insecurity of the defenders is showing, to be sure.  Neal Kumar Katyal, President Obama’s solicitor general, defending the national health care law last week, told a federal appeals court that Americans who didn’t like the individual mandate could always avoid it… by choosing to earn less money.  He made the argument under questioning before the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

That does not strike me as the most steadfast legal defense imaginable.  Not to mention, the judges in the Sixth Circuit trial were less than amused.

During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”

Throughout the oral arguments, Kaytal struggled to respond to the panel’s concerns about what the limits of Congressional power would be if the courts ruled that they have the ability under the Commerce Clause to force individuals to purchase something.

Today, the judges on the 11th Circuit in a parallel case were just as unconvinced.

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.

Even more interesting is the lengths that Justice Frank Hull, a Clinton appointee, pushed Katyal:

“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.

To many observers, it looks like Hull, who was supposed to be a liberal vote on this court, is looking for a way to strike down the mandate without killing the bill all together.

If both the 6th and 11th Circuits strike down the constitutionality of the individual mandate, Justice Anthony Kennedy, the swing vote on the Supreme Court, will be hard pressed not to do the same.  Although Kennedy is difficult to predict, the bipartisan nature of the lower courts could sway him.

Of course, ultimately this will go to the Supreme Court.  But the legal arguments to this point should make any supporter of the individual mandate very wary of its prospects.

This has been cross posted at Neoavatara.