Appeals court highly skeptical of ObamaCare in today’s arguments


Granted, granted, a tough oral argument is no guarantee of defeat, but the mere possibility of O-Care crashing and burning in the 11th Circuit is tasty enough to be blogworthy. Time magazine makes a good point: Lower-court rulings on the mandate’s constitutionality have tracked with each judge’s partisan leanings, but the 11th Circuit panel is truly bipartisan. Two of the three judges who heard arguments today were appointed to the district court by Reagan, but two of the three were elevated to the appellate court by Clinton. Given that melange of blue and red, you think famous fencesitter Anthony Kennedy is watching this case to see which way things come down?

They might not strike down the entire law, but the AP’s Magic Eightball says all signs point to yes when it comes to the mandate:

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.

Hull is the one judge on the panel who was appointed to both the district and appellate courts by Clinton. It sounds to me like she’s looking for a way to strike down the mandate while leaving the rest of the statute intact (sounds that way toPolitico too), which Roger Vinson famously refused to do in his lower-court decision.

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If the individual mandate is unconstitutional the question is whether or not it can be severed from the rest… there a “severability clause” – a provision that if any portion of an act is found unconstitutional, the remainder will still stand?
ObamaCare apparently contains no such provision.
It all must be struck if the individual mandate is.

Hull will not be able to sever the mandate from the rest of ObamaCare.
It boils down to this:
If the government’s interest in your health care is so substantial a federal interest as to warrant compelling you to buy health insurance, one might see the necessity of such an extensive federal role in health insurance and the provision of health care, including the calorie counting mandate on restaurant menus. But if it is not, it is hard to see how the rest of the act can be constitutionally justified.

No wonder Obama has been stalling rather than fast-tracking this appeal.
He’s hoping we will all get ”outrage fatigue.”
He’s wrong!
Obama now “owns” health care in the public’s mind and rage at ObamaCare will only grow with each cut-off in benefits, increase in taxes, and difficulty in getting care.

105 economists explained, in an amicus brief in the NFIB lawsuit, why the Obama notion (that the economics of heath care are so unique and different as to justify discarding established constitutional protections) is fundamentally flawed.

That was the contention.
Obama claims that the ”economics of health care are unique!”
But not so.
The real world rarely reflects pristine competition such as Obama claims the US Constitution only covers.

The economic features relied upon by Obama — externalities, imperfect information, geographically distinct markets, etc. — are not special to health care at all, but are characteristic of most other markets that economists analyze every day.

So, why throw out the US Constitution over common economic variances?
Obama also claims that the individual mandate as an essential means of financing the uncompensated health care received by uninsured individuals, which the government says amounts to $43 billion annually.
Also not true.
Even Larry’s link showed how most uninsured are healthy, young unattached men!*

An examination of the Medical Expenditure Panel Survey data show that this group’s uncompensated costs are no more than $8 billion annually, or one-third of 1% of the nation’s $2.4 trillion in annual health care costs.

Really what Obama wants is these healthy guys to SUBSIDIZE everybody else!


*43 percent are young adult (18–25 years of age).
*65 percent are male.
*More than half have never been married.
*80 percent report they were in good, very good, or excellent health.

@Nan G:

That is my understanding as well, of the law. Although, I would not put it past the activist judges within our system to somehow explain that “severability” is implied. The strict Constitutionalists will not do so, but the other, more liberal justices, might.

johngalt, I don’t think the judges could get by saying the “severability” clause is implied since there is Congessional records that show this was debated in Congress and it was decided to to not put the clause in the bill. I know not why the Democrats decided to eliminate the clause but they did, as records will so. Those records are available to the states arguing against the Constitutionality of this bill.

@Nan G:

why the Obama notion (that the economics of heath care are so unique and different as to justify discarding established constitutional protections)

I just got done commenting upon the Constitution, and the importance of it’s remaining the standard to which all other laws and regulations are compared to, in order to remain a ‘nation of law’, and not be a nation ruled by the whims of men. That argument by the Obama admin, exactly details why holding a strict adherence to the Constitution is necessary to prevent tyranny. If it is allowed to stand, that argument, then it can be used as justification for other changes in law, contrary to the Constitution, that impede, or infringe, upon the rights both implied and stated, of we the people.

For example, one could imagine the government then using that argument, of a unique economy within a market, to enact sweeping reforms for the energy industry, in efforts to enact laws the “environmentalists” wish to be enacted, such as Cap n Trade. Or with “net neutrality” laws, since the internet can be considered it’s own, unique economy, and thus, limit first amendment rights.

Simply put, disregarding the Constitution as the standard to which all laws and regulations are compared to, in order to determine whether or not they are within the powers granted the federal government, and instead, using an ambiguous and arbitrary comparison such as that, will render the Constitution null and void in future questions of Constitutionality, and turn us truly into a nation ruled by the whims of men, for the expediency of the moment.


I did not know about the debates about the clause being included or not within Obamacare. Thank you. Once again, it’s proven that one can learn something new every day.