Obamacare's Tough Day In Court

The 11th Circuit has heard argument on the constitutionality of Obamacare. The duelists were Neal Katyal for the government (on loan from Georgetown Law School) against Paul Clement and James Carvin.  These are all heavy hitters.

Focusing on a “hot bench’s” questions is usually a fool’s errand.  Some judges simply like to give lawyers a hard time. Were I pro-Obamacare, however, I would be concerned by one problem.  When Obamacare was initiated, the arguments of its opponents that it was unconstitutional were laughed at by its Congressional supporters and by the President. Moreover, because of Scott Brown’s election the Democrats decided to simply reconcile the bill they had so it did not again need Senate confirmation.

This caused a little noticed problem.  This legislation does not have the common and almost pro-forma “severability clause” which allows a part of the law to stand even if another part is struck down.

These two issues are combining to make this case a horse race.  The 11th Circuit panel (a panel is made up of three members of a broader bench numbering 12 or more) is a mixed bunch of appointees.  The questioning, however, took the arguments of Obamacare’s adversaries seriously.  Even the judge most sympathetic to the government’s position was displeased with Mr. Katyal’s failure to limit the principle of government power he was espousing.

This could doom the legislation in this Circuit.  If judges are worried they are enshrining a principle of government power they do not think they could live with if it came up again they might strike down all or a portion of the law.

There are many ultimate possibilities for this legislation.

First, it is upheld in its entirety and the enlargement of government in economic decisions under the Commerce Clause will have received its greatest judicial boost since the New Deal.  The principle that the Federal Government can make you buy something you are not inclined to buy is far greater than any established before -- and the government freely admitted that over 200 years of constitutional decisions provided no example of such a proposition being upheld.

But if only that clause is struck down conservatives may be in trouble.  Obamacare could end up undermining private insurance:  all those who need to buy insurance may well become “free riders”, destroying insurance by buying it only after they are sick.

However, if it is struck down -- and the court does not believe the rest of the legislation is severable (read salvageable) -- the entire edifice will come crashing down.

The 11th Circuit knows this is going to the Supreme Court.  The Supreme Court denied Virginia’s request to expedite a decision so it will follow its slow course up the chain.  Nothing can be gleaned about the outcome from oral argument except this: the opponents of Obamacare were told they would be laughed out of court.  They have made a fight of it.

The reverse corollary to an Obamacare decision being the greatest judicial approval of unfettered Federal power since the New Deal, is that striking it down would be the greatest blow to judicial liberalism and Central Government unbounded by limits in the economic sphere, as has occurred since the switch in time that saved nine.

A high stakes case, for sure, but this week's oral arguments were just a curtain raiser for the real drama ahead.