Health Reform's Up and Down Day in Court

by Jonathan Cohn | June 8, 2011

The debate over the Affordable Care Act's constitutionality moved into another courtroom on Wednesday. This time it was a panel of judges from the 11th Circuit, in Atlanta, listening to an appeal of the most sweeping decision of all: Judge Roger Vinson’s decision invalidating not just the individual mandate but the entire law.

How’d it go? That really depends on whom you ask. Cato’s Iyla Shapiro, a leading critic of the law, called it “the best day yet for individual freedom.” He noted, among other things, that the three judges hammered Acting Solicitor General Neal Katyal with questions about the limits of federal power:

Countless times, Judges [Joel] Dubina and [Stanley] Marcus demanded that the government articulate constitutional limiting principles to the power it asserted. And countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce.

Ian Millhiser, who blogs at Think Progress, had a more sanguine view, describing the result as a "mixed bag." Media reports from the Wall Street Journal's Janet Adamy and Politico's Jennifer Haberkorn conveyed similarly nuanced impressions.

I didn’t hear the entire oral argument, which C-Span helpfully broadcast. (Note to the federal judiciary: There’s this thing called the internet and it can transmit audio files.) But I, too, came away genuinely uncertain how the court will rule. The judges seemed a lot more ornery during the questioning of Katyal than they did during the questioning of Paul Clement, the former solicitor general arguing on behalf of the states filing the lawsuit. But the actual substance of those questions – and some side comments that the judges made – suggested they were ready to reject essential pieces of the legal challenge.

Particularly striking were a series of comments from Frank Hull, in which she (yes, Frank is a “she”) stated repeatedly that she did not agree with the “activity-inactivity” distinction opponents of the law have made. As those of you following this case know, that’s really the heart of their argument: They say the decision not to buy insurance is a form of “inactivity,” which means the government may not regulate it. Supporters of the law, including the government, disagree. And Hull seemed to side with them, saying (roughly, given my sketchy notes): 

When I decide I would rather spend my money differently… that I would rather buy this product than pay for health insurance … that’s an economic decision. … How can that be anything other than an economic decision?
[When I have a more accurate transcription I'll add it.]

More subtle, but potentially no less important, was a line of questioning by Marcus. Several times he suggested that the plaintiffs were using a Commerce Clause argument (that regulating inactivity is impermissible under its terms) when they were really making a liberty argument (that people have some intrinsic right not to be forced to pay for their health care). That could indicate that he sees this whole lawsuit as an effort to smuggle in concepts of economic liberty that the Supreme Court has rejected ever since the New Deal.

Or not. These judges certainly gave the government a harder time than the previous two panels did. And their ideological makeup suggests they are more inclined to look upon the law skeptically. Marcus and Hull are Clinton appointees, but, as Millhiser noted the other day, both were compromise appointees made to satisfy the Republican Senate. Macrus, in fact, is a Republican first appointed to a lower court by Ronald Reagan. The third judge, Dubina, was appointed by George H.W. Bush. And, in case you haven’t heard, his daughter is a newly elected Republican member of Congress who voted to repeal the Affordable Care Act and has stated that we should “abolish the IRS as we know it.”

Predicting rulings based on oral arguments is always difficult. In this case, it seems absolutely impossible. Time’s Kate Pickert had a good observation the other day: The most significant development in this case will take place when, and if, a judge breaks with the ideological pattern—in other words, when a conservative votes to uphold the law or a liberal votes to reject it. Of course, whether or not that happens, the final word will probably remain with the Supreme Court. As Dubina told the lawyers when arguments were over, “I doubt this is the last time you’ll be arguing this.”

Update: An alert reader notes that I misstated the backgrounds of the judges. Marcus, not Hull, was the Reagan appointee. And it was George H.W. Bush, not George W. Bush, who put Dubina on the court. My apologies for the error--and my thanks to the reader. I also added a longer direct quote from Shapiro, just so readers could get a better impression of the tough treatment Katyal received.

Source URL: http://www.newrepublic.com//blog/jonathan-cohn/89677/atlanta-11th-circuit-appeal-health-care-hull-katyal-clement