By Susan Brinkmann, OCDS
Staff Journalist

In what will be the most important decision yet on ObamaCare, a three-judge panel on the 11th Circuit Court of Appeals charged with hearing a 26-state challenge to the health care reform law appeared uneasy during oral arguments yesterday with a requirement that forces Americans to buy healthcare or pay a fine.

The Associated Press is reporting that during yesterdays hearings, all three judges asked pointed questions about the individual mandate which the government says is needed to expand coverage to millions of uninsured Americans.

Chief Judge Joel Dubina, a Republican appointee to the bench, was the first to ask the government’s attorney: “If we uphold the individual mandate in this case, are there any limits on Congressional power?” Judges Frank Hull and Stanley Marcus, who were both appointed by President Bill Clinton, raised similar concerns later in the hearing.

The AP reports that Acting U.S. Solicitor Neal Katyal tried 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.

But Paul Clement, a former U.S. solicitor representing the states, countered that the federal government should not have the power to compel residents to engage in commercial transactions. “This is the case that crosses the line,” he said.

Judge Hull also seemed skeptical about the government’s claim that the mandate was crucial to covering uninsured Americans, saying that this could be done in other ways such as expanding Medicare discounts for some seniors and making it easier for people with pre-existing conditions to get coverage. While she spoke, fellow Judge Dubina nodded his head in agreement.

Another interesting exchange was when Judges Hull and Dubina asked lawyers on both sides to address what might happen if the individual mandate was invalidated, but the rest of the reform was upheld.

Katyal said parts of the law would survive but told the judges they would be making a “deep, deep mistake” if the insurance requirement were found to be unconstitutional.

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, the rest of the package should collapse. “If you take out the hub, the spokes will fall,” he said.

Although the hearing seemed to favor the challengers of the law, no one is willing to gamble on how – or when – the panel will rule.

The 11th Circuit is known as one of the most conservative appeals courts in the country but the three judges chosen at random are not considered to be either “stalwart conservatives or unfailing liberals,” the AP reports.

Dubina is not considered to be as conservative as some of his colleagues, although his daughter, U.S. Rep. Martha Dubina Roby (R-AL) just elected in November is adamantly in favor of repealing ObamaCare.

Judge Marcus was nominated by Republican Ronald Reagan to serve on the Florida bench after several years as Miami’s lead federal prosecutor and was later elevated to the federal bench by President Clinton. According to the AP, Judge Hull, another Clinton appointee and former county judge in Atlanta, is “known for subjecting both sides of the counsel table with challenging questions.”

This is only one of several cases challenging the law that are currently making their way through the court system. But the 26-state suit is considered to be the most pivotal because it would either uphold or strike down the ruling of U.S. District Judge Roger Vinson of Florida who invalidated the entire law based on the unconstitutionality of the mandate.

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 that read “Hands Off My Health Care,” “No taxpayer funded abortion” and “Throw the socialist out of the White House.” No chanting was permitted. When one woman began to chant, “No more Tea Party,” she was immediately escorted away by a courthouse security officer.

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