Judges Skeptical Of Obamacare

The "Los Angeles Times" reports:

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.

Acting U.S. Solicitor General Neal K. Katyal faced off against former Bush administration Solicitor General Paul Clement in what has become the largest and broadest challenge to the healthcare law. In all, 26 states and the National Federation of Independent Business joined in urging the judges to strike down the law. 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.

That argument is at the heart of the constitutional challenge to the healthcare law and its mandate that nearly all Americans have health insurance by 2014.

"I can't find any case like this," said Chief Judge Joel Dubina of the 11th Circuit Court of Appeals. "If we uphold this, are there any limits" on the power of the federal government? he asked.

Judge Stanley Marcus appeared to agree. "I can't find any case" in the past where the courts upheld "telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?"

Katyal argued that healthcare is unique and unlike purchasing other products, like vegetables in a grocery store. "You can walk out of this courtroom and be hit by a bus," he said. And if such a person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care, he said.

Katyal argued that Congress could reasonably decide that since everyone will likely need medical care at some time in their lives, everyone who can afford it should pay part of the cost. And he said the courts should uphold the law under Congress' broad power to regulate commerce in this country.

Judge Frank Hull, the third member of the panel, repeatedly asked the lawyers about the possible effect of the court striking down the mandate, while upholding the rest of the law. She said the government had exaggerated the importance of the mandate. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.