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The Right Prescription
Obamacare Has Another Rough Day in Court
DOJ attorneys face palpable skepticism in the Eleventh Circuit Court of Appeals.
The good news, for the government lawyers who on Wednesday defended ObamaCare against a constitutional challenge brought by 26 states, is that the judges of the Atlanta appeals court asked no questions about broccoli. But their good luck appears to have ended there. The three judges who heard the Obama administration’s legal justification for the individual mandate peppered acting U.S. Solicitor General Neal Katyal with obviously unsympathetic questions about the government’s claim that Congress has the power to order Americans to buy products from private corporations. Katyal, who was assigned the task of defending this proposition by Elena Kagan before she became a Supreme Court justice, produced the familiar administration arguments about the need to force everyone into the system if it is to work.
But the judges did not appear convinced. Chief Judge Joel Dubina pointed out that there is no precedent for the claim that Congress is permitted to impose such a mandate by virtue of the Constitution’s commerce clause: “I can’t find any case like this.… If we uphold the individual mandate in this case, are there any limits on Congress’s power left?” Judge Stanley Marcus was also unequal to the task of finding a precedent for this arrogation of power by the federal government: “I can’t find any case… telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?” Judge Frank Hull asked whether Congress could pass a similar law requiring Americans to buy certain types of cars or energy-saving devices to comply with federal energy policy.
Judge Hull’s question speaks to the issue that U.S. District Judge Roger Vinson, whose decision to strike down ObamaCare last January led to Wednesday’s clash in the appeals court, was getting at when he employed the more colorful broccoli metaphor. Judge Vinson asked Ian Gershengorn, the government lawyer charged with defending ObamaCare in his court, “If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?” Gershengorn responded by pointing out the blindingly obvious and irrelevant fact that health care “is not shoes, it is not cars, it is not broccoli.” In response to Hull’s question, Katyal echoed Gershengorn’s claim that the health care market somehow possesses unique qualities that necessitate the mandate.
Inevitably, the question of severability arose during the hearing. A severability clause, you will recall, is language inserted into a piece of legislation to ensure its general viability even if some poorly-thought-out provision is declared invalid in court. Unfortunately for the DOJ lawyers, the Democrats who foisted “reform” on an unreceptive electorate neglected to include a severability clause in ObamaCare. When Judge Hull inquired about the consequences of striking down the mandate while allowing the rest of the law to stand, lawyers for both sides seemed to agree that ObamaCare would unravel without the mandate. Katyal echoed the government’s familiar “linchpin” argument. And, arguing for the states, Paul Clement said, “You can’t separate out the mandate. We take the position the whole thing falls.”
A significant portion of Wednesday’s hearing was devoted to a second, more obscure objection raised by the states. They assert that ObamaCare unconstitutionally “commandeers” state resources by arbitrarily increasing the costs of administering Medicaid. As legal scholar Brad Joondeph explains it, “The notion was that the states had agreed to participate in Medicaid with a certain understanding of the program, and ACA had fundamentally changed those terms…” The government claims that the states are not being coerced because they can simply opt out of the program. This would, however, be virtually impossible from a fiscal and political perspective because it would require them to fund Medicaid with no federal help at all or discontinue the program. In other words, the opt-out choice is illusory.
Interestingly, Judge Vinson was unconvinced by the commandeering argument, and most observers expected the Eleventh Circuit to follow his lead on the Medicaid issue. On Wednesday, however, two of the three judges demonstrated no small amount of interest in the position of the states. As Joondeph points out, “Perhaps most tellingly, Judge Marcus asked whether the Medicaid provisions were severable from the rest of ACA.” Likewise, Judge Dubina said the states had “a pretty strong argument.” Unlike Vinson, Marcus and Dubina have apparently noticed that ObamaCare was designed to herd about 18 million uninsured patients onto Medicaid without providing enough funds to the states to cover the cost. This is, at the very least, an unfunded mandate.
Politically, the judges of the Eleventh Circuit are a mixed bag. Dubina is a Republican appointee, but Hull was appointed by Bill Clinton, as was Judge Marcus. Despite its Democrat appointees, however, this appeals court has a reputation for conservatism. Thus, it is quite possible that they will strike down at least part of ObamaCare. Regardless of which way they rule, the losing side will immediately ask the Supreme Court to take up the case. Assuming the high court deigns to hear the case, it will end up being argued and decided in the midst of the 2012 election cycle. Further complicating matters is the awkward reality that one of the Supreme Court justices, Elena Kagan, was obviously involved in orchestrating the legal defense of ObamaCare. Thus, there will be legitimate calls for her to recuse herself from any case involving that law.
Presumably, the government lawyers who defended ObamaCare on Wednesday would have preferred Wednesday’s proceedings go more like the Fourth Circuit hearing involving Virginia’s ObamaCare challenge. The Fourth Circuit panel was comprised of judges appointed by President Obama and Bill Clinton. Not surprisingly, they were transparently sympathetic to the government’s position. They will almost certainly uphold ObamaCare, including the individual mandate. The judges of the Eleventh Circuit probably won’t be so accommodating. They didn’t submit Neal Katyal to the indignity of answering questions about broccoli, but they will probably hand him and his superiors in the Obama administration an embarrassing and inconveniently timed defeat.
About the Author
David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.
Letter to the Editor View all comments (43) | Leave a comment
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Mimi| 6.10.11 @ 7:12AM
I wish the Obama administration...Barrack , and Michelle and their minions, and the 20% of Liberals in this country and any other who thinks WE The PEOPLE ...should eat Broccali .....Realized That the brilliant men of the late 1700's our founders, created for US a Constitution that gives us the rights to to have power over those who wish to govern us.
We now have a GOVERNMENT who mistakenly think they have raw power now and are using it and to its own detriment . It is PURE, AUDACIOUS....ABUSE! The chaos will end with the Supreme COURT. Business, will then be able to form decisions...people will again begin to get back to work and our prosperty will return. The ignorant experiment of the control-freak LEFT ....will finally be put in its place....and NEVER to be given another chance to destroy a NATION....or try to!!!
chuck| 6.10.11 @ 8:06AM
What gets me is that these arrogant bastards think that we are so stupid and helpless that we need them to take care of us. Meanwhile, they are taking the money we earn from our hard work to do it! We're smart enough to figure out how to produce enough to fund this crap they come up with, but we're so damned stupid that we can't take care of ourselves!
JFGalt| 6.10.11 @ 12:48PM
If quoting the constitution now deems you to be a terrorist in the eyes of the police why don't they arrest constitutional lawyers for being terrorists. Will Kagan recuse herself. There is NO WAY that she will not with such a grand liberal cause to uphold. Hypocrisy and Self-Righteousness is their hallmark.
buckeyeman| 6.10.11 @ 7:52AM
Leave it to a gaggle of lawyers to obscure the most obvious issue. Often, their efforts are designed to also obscure the horrific decisions they hand down and the lack of anything even remotely resembling logic or reasoning.
The case at bar is simple. Does the US Constitution grant the government the power to order individual citizens to purchase a specific product available in the market? If so, where is such authority vested? The self-evident answers are "no" and "nowhere".
It matters not a whit whether the law in questions "works" or not without the inclusion of this or that component. The only question SHOULD be whether the component is constitutional.
Without a severability clause the loss of any part of a law nullifies the entire law. PERIOD. No discussion is needed.
Now, the justices seek to sidetrack the freakshow into a question of the federal government "commandeering" a state program based on differing versions of what was "promised" versus what was "understood" by the states regarding Medicaid. Who cares? Obamacare is unconstitutional on its face by reason of the "individual mandate" clause which is not severable from the rest of the bill (whether the remainder of the bill would "work" or not is immaterial).
Judges often beat up on the side to which they will grant the victory. It is an element of their psychopathology that is part and parcel of their very beings. The same psychopathology that leads them to take simple constitutional questions with obvious answers into convoluted legal morasses with inscrutable decisions that just lead to insane outcomes and, of course, more litigation.
c. j. acworth| 6.10.11 @ 6:10PM
"It matters not a whit wether the law in question works or not without the inclusion of this or that component."
Thank you, buckeye, for finally pointing out what I have been thinking since the beginning of this mess. Even if the law as written would bring about health-care Nirvana, it is still unconstitutional. Even if the vast majority of us wanted this system put in place, absent a constitutional amendment, it fails.
Impeach Don't Wait| 6.10.11 @ 8:32PM
"Leave it to a gaggle of lawyers to obscure the most obvious issue. Often, their efforts are designed to also obscure the horrific decisions they hand down and the lack of anything even remotely resembling logic or reasoning."
Add to that the horrible practice they're repeating of looking for precedent... as if to say that if some judge in the past opened the door for this type of thing, that would automatically make the current law constitutional. Bad precedent does not equal constitutionality, for goodness sake. They should be required to rule according to the obvious, not per precendent. But then I'm not a lawyer, so I'm sure there's something wrong with that thinking...
Tenn Slim| 6.10.11 @ 8:42AM
The beat goes on.
Eventually, OBAMACARE will die of its own weight.
Legaly a mess, fiscally a disaster. Already, across the Med World, Medicare patients are being held to previous Doctors choices. IE No new patients allowed.
Try to get your local doctor to opine on OBAMACARE, just after your physical. Expect to stay in the small room ad nauesuem.
OBAMACARE will be the albatross that drowns the OBAMA admin.
end
Semper FI
Mimi| 6.10.11 @ 9:12AM
It already has.... he's taken it down as they "DEMS" watch and do nothing.We????....Suffer!
Dan| 6.10.11 @ 9:15AM
I wouldn't go banking on the 11th Circuit deciding against Obamacare.
Clinton appointees aren't in the business of ruling against key Democrat legislative initiatives. Democrats know full well the rules of the game, especially those placed up on the bench.
JimmyMac| 6.10.11 @ 9:38AM
This is my fear too. I think we're getting a little too optimistic based on their questions and comments. If recent history has taught us anything, it's that Democrat judges will tow the Democrat line in spite of the law and the Constitution.
Stormzeye| 6.10.11 @ 10:08PM
Don't be so sure, Dan. Eisenhower admitted that his biggest mistake in office was appointing Earl Warren (former governor of California and the one who interned all those Japs during WWII) as the Chief Justice of the Supreme Court. He of course immediately started re-writing the Constitution from the bench. In other words, these judges can get extremely independent once they're appointed for life.
C Smith| 6.10.11 @ 9:45AM
Pravda, Russia's oldest newspaper predicted, almost a year ago, what is culminating this Sunday. In American Capitalism Gone With a Whimper Stanislav Mishin writes:
"... the American decent (sic) into Marxism is happening with breath taking speed, against the back drop of a passive, hapless sheeple [people].... the population was dumbed down through a politicized and substandard education system based on pop culture, rather then (sic) the classics. Americans know more about their favorite TV dramas then the drama in DC that directly affects their lives. They care more for their "right" to choke down a McDonalds burger or a BurgerKing (sic)burger than for their constitutional rights.... So, should it be any surprise to discover that the Democratically controlled Congress of America is working on passing a new regulation that would give the American Treasury department the power to set "fair" maximum salaries, evaluate performance and control how private companies give out pay raises and bonuses? Senator Barney Franks, a social pervert basking in his homosexuality (of course, amongst the modern, enlightened American societal norm, as well as that of the general West, homosexuality is not only not a looked down upon life choice, but is often praised as a virtue) and his Marxist enlightenment, has led this effort.... Prime Minister Putin, less then two months ago, warned Obama and UK's Blair, not to follow the path to Marxism, it only leads to disaster. Apparently, even though we suffered 70 years of this Western sponsored horror show, we know nothing, as foolish, drunken Russians, so let our "wise" Anglo-Saxon fools find out the folly of their own pride.... The proud American will go down into his slavery with out a fight, beating his chest and proclaiming to the world, how free he really is. The world will only snicker."
But why?
"... their faith in God was destroyed... their churches, all tens of thousands of different "branches and denominations" were for the most part little more then (sic) Sunday circuses and their televangelists and top protestant mega preachers were more then (sic) happy to sell out their souls and flocks to be on the "winning" side of one pseudo Marxist politician or another. Their flocks may complain, but when explained that they would be on the "winning" side, their flocks were ever so quick to reject Christ in hopes for earthly power."
Why do I feel more at peace with my enemy then with those now gathering in the once hallowed halls of Washington? Gathering to deliver our Constitution the final coup de grâce. A formality previously administered to our nation now convulsed with a death rattle confused with talking points, argumentum ad nauseam.
But why?
The church has forgotten her witness and her Lord. She has become like the world, giving the world her blessing. Like Esau, who would have inherited, but for a morsel sold his birthright and found no place of repentance, though he sought it with tears (c.f. Heb 12:17).
And as the abominable assembly gathers for their Sunday circus in the once hallowed halls of our forefathers, halls sanctified by their witness and their blood, we are rendered slaves not free "For the time is come that judgment must begin at the house of God: and if it first begin at us, what shall the end be of them that obey not the gospel of God? " (1Pe 4:17).
http://popularapostasy.blogspo.....ircus.html
Fredrick Ward| 6.10.11 @ 12:40PM
There is something I said long ago to a few people when the idea of a one world government was talked about among us. I told them that in order for such a thing to come to pass that the United States would need to fail financially, and that it's most honored historical documents that this country was founded upon would need to be eliminated. I had no idea even a portion of what I said would be happening in my own life time.
simon templar| 6.10.11 @ 5:24PM
I believe you. You had great insight and I am guessing still do.
Impeach Don't Wait| 6.10.11 @ 9:01PM
Sounds like a sobering (and chilling) campaign ad. Something like this:
"To usher in one world government, the U.S. would need to be toppled financially, and its revered founding documents rendered irrelevant.
2011: YOU ARE THERE.
Nov. 6, 2012: The last chance."
C Smith| 6.10.11 @ 9:55AM
PS: The Sunday Circus above was written on the day "Obama Care" became law.
Gary| 6.10.11 @ 10:12AM
It is sad that even liberal judges would consider ruling that the government can compel the purchase of private health insurance using the commerce clause. I would ask these nincompoops if so, what is the court's criteria for allowing such a huge expansion of power? That power is limited to one thing, health insurance, but is forbidden for all other products or services that affect commerce? That will not fly, as once that power is read into the Constitution, the Geanie is out of the bottle and knowing how the lefties worship at the altar of global warming, how long will it be until they attempt to compel the purchase of energy saving products of their choosing? They are already doing so in fact by banning the use of incandescent light bulbs despite many people liking them for practical and aesthetic reasons. WE know best is a frightening power to give the government.
J.C.Eaton| 6.10.11 @ 10:49AM
I believe Mimi is right that courts employ "raw judicial power" and do so far more frequently in deciding cases than they use sweet reason to do so. It seems to me that the Federalist Papers were largely holding onto a very thin reed when they explained how the "checks and balances" of the Constitution would render the Judiciary the permanently weakest branch. Once a Fed is annointed to a bench, he/she is captain of his/her ship, master of our fate. These are pure oligarchs who answer to no one. They can and do, do whatever they choose. We are naive to think that winning ANY federal decision does us or the country any permanent good....all we are getting for our money and our trouble is a temporary reprieve until the next Liberal decision can rectify the blunder in our favor. Besides, conservative judges do exactly the same thing: they rule with brutish, high-handed power. The Founders were geniuses, yes. But they swallowed some real bear-dung on this one.
Mimi| 6.10.11 @ 5:28PM
JC Eaton....In my post, to be more clear, the RAW power , to the point of ABuse was meant not the courts but the present OBAMA administration. I look to the Judges to rectify and put a stake through the heart and KILL OBAMACARE by declaring it un-constitutional. I think that this one take-over of our very bodies, and having Doctors decision be controlled by Government, the mandates, are so against personal LIBERTY it is so foriegn an idea and it has put up a dam holding back the economy....A court decision ending this will save us precious time. This chaos must end...The black robes must hurry....AMERICA waits!!
George S| 6.10.11 @ 11:15AM
Does the Constitution give the Congress the power to compel, say, France into commerce with the United States? If not, then how can they mandate we purchase insurance? What does one have to do with the other? Look at the 'commerce clause':
"[The Congress shall have the power to] regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
Three, and only three things are within the regulatory reach of the commerce clause; each separated by a comma, meaning that it is one continuous stream of though spanning a list of three items. Since Congress cannot compel commerce WITH foreign nations, then the Constitution (and grammar) forbids a change of horses in mid stream to allow compelling commerce among the several states (or Indian tribes). To rule the mandate constitutional one must then acknowledge that Congress not only has the power to make YOU buy broccoli but a Frenchman as well.
Jack London| 6.10.11 @ 1:38PM
'Does the Constitution give the Congress the power to compel, say, France into commerce with the United States?'
Yawn.
simon templar| 6.10.11 @ 4:58PM
Don't worry Jack, you will get your socialism and everything else that comes with it. You won't be yawning.
Occam's Tool| 6.13.11 @ 5:41PM
Exactly, Simon.
Here's something fun from the Cass Lake Indian Health Service website---this is from the HOSPITAL WEBSITE ITSELF:
"Treaty agreements signed between tribes and the US government direct that all health care provided to Native Americans in Indian Health Service facilities is free including all pharmaceuticals on the Federal formulary. However, federal funding has not kept pace with the Native American population or with the increasing cost of health care delivery. The Cass Lake Indian Hospital and Clinics is currently funded at approximately 44% of need."
That's the fact, Jack. Or, to be more blunt, you have no clue what the hell you're talking about.
Occam's Tool| 6.13.11 @ 5:59PM
What I'm saying with the above, Jack, is look out for your health care in the US when it goes socialized. We'll be getting IHS and VA level of care.
Walking Horse| 6.10.11 @ 12:07PM
It really doesn't make much difference if the courts uphold ObamaCare. Let them try to enforce the mandate and see what happens ..
Oldefarte| 6.10.11 @ 12:37PM
Even though I do not hold out much hope in these legal processes for a defeat of this WELFARECARE [and instead an relying on the American voters to finally realize their previous stupidity and vote for the Republican candidate in next year's election, and to thus defeat this asininely ridiculously absurd legislation] within the court system [since lawyers and judges are by their very nature liberal and Democrats]; I do hope that David's [and others'] prognostications concerning same are proved correct!!!!!!!
Mike McCoy | 6.10.11 @ 12:39PM
Like Social Security, ObamaCare was created to ensure the Democratic Party of continued dominance in the political arena. However, Walking Horse is right. Even if ObamaCare makes it through the courts, our battered economy will make the mandate impossible to enforce.
simon templar| 6.10.11 @ 4:47PM
2025 America. Back to the Future.
The mandate was struck down by the supreme court in 2011 though the Obamacare Law essentially remained intact with the help of the GOP who did nothing in the commencing years to dismantle it. It was argued at the time that the Law was now compliant with the constitution as it was no longer a mandated program but a voluntary one. Small and large business were no longer required to provide health insurance either and waivers were dispensed with. Business no longer raised any objections and was content. The feds in 2014 began the federal health insurance coop exchanges where citizens lacking insurance could purchase it or purchase a private plan in the market. Unfortunately these private plans became so expensive ( average cost 25, ooo dollars a year, 2014 dollars) that only the wealthy, CEO's and corporate management could afford them. Government workers remained on their cadillac plans as it was argued that this would be more cost effective than changing the system. Their plans, however, were held by private insurers at tax payers expense. The vast amount of employees were thrown off their health benefit plans by their employers and were advised to either choose the fed exchange program or purchase private insurance. Private insurers were particularly happy because they no longer carried the high risk populations but rather the wealthy who are statistically heathier and more capable of paying large premiums. Most chose the fed exchange and then were subsequently taxed at high rates to pay not only for themselves but also support the aged and illegals. Medicare collasped as predicted two years earlier than predicted and was slated to be phased out anyway due to the transfer of billions from this program to the fed exchange. All other regulations in the 2000 page bill were incrementally executed whereby the public did not object as the implementation phase was much like the frog in water. The fed now essentially controls 80 percent of the health care industry and is now taking in trillions of dollars through taxation that they have used to fund their many endeavors to serve the public.
Rick| 6.10.11 @ 4:58PM
Your a rasist!
simon templar| 6.10.11 @ 5:17PM
You are illiterate. Racist.
Occam's Tool| 6.13.11 @ 5:42PM
Simon---I think Rick is being tongue in cheek. He does this a lot.
Or, he's a blithering idiot. At any rate, you're wonderful.
Oldefarte| 6.12.11 @ 11:02AM
Either you lack literacy or you're tongue-tied!!!!!!
PattyMor| 6.10.11 @ 5:23PM
It almost doen't matter what the appelate courts decide. No matter which side wins, the case is going to the Supremes. The final decision probably rests on what kind of thinking Kennedy is having when the opinion is given. The Libs will vote yes, the conservatives no and Kennedy wil be the deciding vote.
Ole| 6.10.11 @ 5:27PM
How could Congress under the brilliant leadership of Pelosi and Reed let a complex bill such as ObamaCare go through without a severability clause? How could a president who taught law at a top law school sign such a bill into law? Boggles the mind.
simon templar| 6.10.11 @ 5:32PM
Don't worry about it, they are very clever and creative and who is going to hold them accountable. You could ask the same question about Libya, the borders, the oil moratorium, and on and on..all failure to uphold the law, respect the court decisions or the powers of congress, or the will of the people.
Walking Horse| 6.10.11 @ 5:41PM
I think you may be assuming this Administration will honor a Supreme Court decision that goes against Obamacare. I would not make book on this crowd honoring the rule of law, given the experience of the GM bondholders, the judge who held the Administration in contempt for the moratorium on drilling, etc., etc. ...
With respect to ObamaCare, the most reliable path to defeating it is nullification, executed on an individual basis. Let the feds try to prosecute millions who tell them to pound sand.
Curtis Rasmussen| 6.10.11 @ 6:33PM
They'll sic the IRS on you if you don't participate. Fines and potential jail time.
Pain is unavoidable, whether from Obamacare's death panel denial of the life saving but infrequently used medical treatment or the fiscal pain from standing up for you god-given rights against tyranny.
Occam's Tool| 6.13.11 @ 5:57PM
Dear Ole---over 60% of Barack Obama's class at Harvard graduated WITH HONORS. In my Medical school class, Alpha Omega Alpha was around 15%. Dr Right, I suspect, knows more.
Law school academic rigor is a joke, like military intelligence. Look at the former Dean of Harvard Law---fewer than 15 academic papers to her name, and none significant.
shipley130| 6.11.11 @ 3:00PM
Obamacare is nothing but an expansion of the Medicare ponzi scheme. Nobody in the federal government can claim that it will never eventually be a one payer system, because they don't know what future presidents and congress will do. I'm pretty sure that nobody thought back in 1965 that the medicare system would be expanded to cover more than the aged.
weddingdresses | 6.13.11 @ 2:48AM
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insanity | 6.13.11 @ 10:53AM
nice post
Tom B| 6.13.11 @ 10:35PM
In my own opinion ( for what's worth) obamacare will go down the tubes by nullification by the states. It has ready started with Idaho leading the way. If enough states do that this the so called administration will have to take them all on.
Want to talk about having to buying something you don't want and are given no choice by the Feds..ok, then lets talk about light bulbs!!!