Wednesday ushered in the latest battle in court centered around Obamacare. The 26 states legally challenging Obamacare are now in the 11th Circuit Court of Appeals in Atlanta making their case. Some reports are being written that the judges - a 3 judge panel consisting of 2 Democrats and 1 Republican - appear to be uncomfortable with the mandate that everyone must purchase health insurance.
The Los Angeles Times reported:
A top Obama administration lawyer defending last year's healthcare law ran into skeptical questions Wednesday from three federal judges here, who suggested they may be ready to declare all or part of the law unconstitutional....
And in an ominous sign for the administration, the judges opened the arguments by saying they knew of no case in American history where the courts had upheld the government's power to force someone to buy a product.
The Associated Press had a similar take: "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."
While oral arguments are not always revealing because judges may be asking questions to assist them in writing their opinions, this has to seen as a positive sign for opponents of the law, especially given that two out of the three judges were Clinton appointees.
The mandate on the individual to purchase a product, any product, is an easy argument to make against Obamacare, it would seem. Others have focused on the law’s Medicaid provisions, which they argue are coercive to the point of violating the U.S. Constitution’s Spending Clause. The Texas Public Policy Foundation also argued this point in the amicus brief submitted for the 11th Circuit.
TPPF’s Mario Loyola and renowned constitutional scholar Professor Richard Epstein address this part of Obamacare in The Wall Street Journal. The Medicaid provision of ObamaCare spells the death knell to competition among the states. States cannot function as "laboratories of democracy"—as the 10th Amendment intended—if the federal government can use its power to tax and spend to bludgeon all states into conformity.
In New York v. United States (1992), the Supreme Court ruled that the federal government cannot require state governments to take ownership of nuclear waste that citizens could not otherwise dispose of safely. And in Printz v. United States (1997), the Court held that the U.S. could not compel local law enforcement officers to conduct background checks on prospective handgun owners without their consent, because such commandeering of state public officials is contrary to the federal structure of our Constitution.
In neither New York nor Printz did the result turn on the "level" of coercion, nor should it do so in the current case. The constant backdrop of the federal taxing power makes a mockery of the claim that state participation under ObamaCare is voluntary. The only way to prevent this grave intrusion on state autonomy is to strike down the Medicaid provisions of the health-reform law.
This newest ruling will be interesting as the previous rulings going in favor of Obamacare were from Democratic appointed judges ruling on it, while those going against Obamacare have come down from Republican appointed judges. The Justice Department sent its top lawyer, U.S. Solicitor General Neal Katyal, to plead its case.
Not to be outdone, the states will be represented by President George W. Bush's former solicitor general, Paul Clement — the same guy who recently quit King & Spalding in protest after the Atlanta-based law firm bowed to intense public pressure and backed out of defending the Defense of Marriage Act on behalf of the GOP House Caucus.