Judges question health care law

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ATLANTA --- Judges on a federal appeals court panel Wednesday repeatedly raised questions about President Obama's health care overhaul, expressing unease with the requirement that virtually all Americans carry health insurance or face penalties.

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Betsy Burgess, of Flowery Branch, Ga., holds a sign during a protest against President Obama's health care reform plan outside the 11th Circuit Court of Appeals.  John Bazemore/AP Photo
John Bazemore/AP Photo
Betsy Burgess, of Flowery Branch, Ga., holds a sign during a protest against President Obama's health care reform plan outside the 11th Circuit Court of Appeals.

All three judges on the 11th Circuit Court of Appeals panel questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates. The panel is made up of two Democratic appointees and one Republican appointee.

The Atlanta panel did not immediately rule on the lawsuit brought by 26 states, a coalition of small businesses and private individuals who urged the three to side with a Florida judge who struck down the law. And it's never easy to predict how an appeals panel will decide.

But during almost three hours of oral arguments, the judges asked pointed questions about the so-called individual mandate, which the federal government says is needed to expand coverage to tens of millions of uninsured Americans. With other challenges to the law before other federal appeals courts, lawyers expect that its fate ultimately will be decided by the U.S. Supreme Court.

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.

Acting U.S. Solicitor Neal Katyal sought to ease their concerns by saying the legislative branch can only exercise its powers to regulate commerce if it will have a substantial effect on the economy and solve a national, not local, problem. Health care coverage, he said, is unique because of the billions of dollars shifted in the economy when Americans without coverage seek medical care.

"That's what stops the slippery slope," he said.

Paul Clement, a former U.S. solicitor representing the states, countered that the federal government should not have the power to compel residents to buy to engage in commercial transactions.

"This is the case that crosses the line," he said.

Hull also seemed skeptical about 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 through 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.

The court, which did not indicate when it would rule, has several options. But Hull and Dubina asked the lawyers on both sides to focus on a particular outcome: What could happen to the overhaul, they asked separately, if the individual mandate were invalidated but the rest of the package were upheld?

Parts of the overall law should still survive, said Katyal, but he warned the judges they'd make a "deep, deep mistake" if the insurance requirement were found to be unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.

Clement, however, argued that the insurance requirement is the "driving force" of the broader package, which he said violates the Constitution's legitimate authority. Without it, he said, the rest of the package should collapse.

"If you take out the hub, the spokes will fall," Clement said.

Marcus said the case struck him as an argument over individual liberties, but questioned whether the judicial branch should "stop at the water's edge" or intervene.

A crush of people gathered outside the 11th Circuit nearly three hours before the arguments were held to guarantee a spot, and the court opened an adjoining courtroom for the spillover crowd. The cramped room was packed with high-profile attorneys and politicians, including Georgia Attorney General Sam Olens, who sat in the front row.

In a rare move, the court decided to sell $26 audiotapes of the arguments for those who missed out.

As the arguments took place, about 75 people staged a rally outside the downtown Atlanta building urging the appeals court to strike the law down, waving signs including one that read "Hands Off My Health Care."

Other legal challenges

The 11th Circuit is not the first appeals court to hear arguments about the constitutionality of the federal health care overhaul, as panels in Cincinnati and Richmond have both heard similar legal challenges to the law within the past month. But legal observers say the Atlanta panel's decision could be the most pivotal because the ruling by U.S. District Judge Roger Vinson, of Florida, is considered the broadest assault yet on the law.

While a Republican-appointed federal judge in Virginia struck down the requirement that nearly all Americans carry health insurance, Vinson invalidated the entire law. Three federal judges, all Democratic appointees, have upheld the law.

The arguments unfolded in what's considered one of the nation's most conservative appeals courts.

-- Associated Press

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