Health-care battle: A third US appeals court weighs law's constitutionality

Lawyers representing 26 states square off Wednesday against the Obama administration. Both sides bring top legal talent to the appeal of a ruling by a federal judge in Florida who invalidated the entire health-care law.

Lawyers representing 26 states are squaring off Wednesday morning against the Obama administration in a federal appeals court in Atlanta in the latest clash over the president’s health-care reform law.

Both sides are bringing impressive legal talent to the battle. Appearing for the president is Neal Katyal, who has served as acting US solicitor general following the appointment of Elena Kagan as a US Supreme Court justice.

On the other side, representing the states, is Paul Clement, a Washington lawyer who served as US solicitor general during the administration of George W. Bush.

At issue is whether the law’s individual mandate requiring Americans to buy a government-approved level of health insurance exceeds Congress’s power under the Constitution's commerce clause.

Critics say Congress has the power to regulate interstate economic activity, but that power does not reach individuals who choose not to purchase health insurance or otherwise participate in the health-care market.

On Tuesday the White House reaffirmed its position that the argument is “without merit.”

“Individuals who choose to go without health insurance are actively making an economic decision that affects all of us,” Stephanie Cutter, assistant to the president, said in a White House blog Tuesday afternoon. “When people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab.”

The appearance before a three-judge panel of the 11th US Circuit Court of Appeals will mark the third such appellate hearing in a series of lawsuits examining the constitutionality of the Patient Protection and Affordable Care Act, signed into law in March 2010.

Arguments have already been heard in separate cases pending before the Fourth Circuit in Richmond, Va., and the Sixth Circuit in Cincinnati.

The case in Atlanta is an appeal from a decision by a federal judge in Florida who ruled in January that Congress overstepped its authority under the commerce clause. Although his finding related to the constitutionality of the individual mandate, US District Judge Roger Vinson invalidated the entire law.

Legal analysts expect one or more of the pending appeals court cases to eventually reach the US Supreme Court for a final determination of the legal challenges.

Lawyers for the state of Florida and 25 other states say the health-care law represents an “unprecedented assertion of power Congress simply doesn’t possess.”

“In the over 200 years that Congress has sat, it has never before attempted to exercise its commerce clause power in this manner. That is not a product of remarkable restraint; Congress has not exercised such a power because it does not exist,” wrote Mr. Clement in his brief on behalf of the 26 states.

By requiring Americans to purchase health insurance, Congress is forcing them to engage in commerce – an activity that the government then claims as the underlying authority for its regulation.

“Sanctioning such a power would eliminate all meaningful limits on Congress’s authority and sound the death knell for our constitutional structure and individual liberties,” Clement wrote.

Lawyers with the US Solicitor General’s Office are asking the appeals court judges to overturn the Florida judge. “The minimum coverage provision is a quintessential exercise of the commerce power,” the solicitor general’s brief said.

The commerce clause allows Congress to regulate not only interstate commerce but also conduct that substantially affects interstate commerce, the brief says.

Government lawyers reject the claims of critics that the individual mandate seeks to regulate nonactivity by forcing people to purchase a product or service that they wouldn’t otherwise purchase. Instead, they say, the ACA seeks to regulate the broader market for health care that includes everyone.

“[Congress] can regulate the conduct of participants in the overall health care market even if they are currently ‘inactive’ in the insurance aspect of that market,” the government brief says.

The arguments are scheduled to last about two hours. The randomly selected three-judge panel includes Chief Judge Joel Dubina and Judges Frank Hull and Stanley Marcus.

The chief judge was appointed by President George H.W. Bush, and Judges Hull and Marcus were appointed by President Bill Clinton.

The case is State of Florida v. US Department of Health and Human Services (11-11021 and 11-11067).