President Obama won the lottery last week when three Democratic-appointed judges were randomly picked to hear the first appellate-level arguments in the constitutional challenges to the 2010 health care law. The two hours-plus of arguments before the Fourth U.S. Circuit Court of Appeals in Richmond, Va. [May 10], left observers and listeners the audio is available on line, here with few doubts that the panel will uphold the law, including its most controversial feature: the individual health insurance mandate.
Obama was not so lucky the next day when a predominantly Republican panel was randomly picked for the next appeals court argument, scheduled for June 1 before the Sixth Circuit in Cincinnati. The two Republican appointees on the three-judge panel include Jeffrey Sutton, a conservative star both before and since his appointment to the bench in 2003 by President George W. Bush.
If those two courts go the same way that lower court judges have gone so far, the health care law will be getting thumbs up from Democratic-appointed judges and thumbs down from Republican appointees. Out of five lower court rulings on the merits so far, three Democratic appointees have upheld the law, two Republican appointees have struck it down.
Cynics will say this pattern proves that the legal challenges are all about politics. Events outside the courts suggest this cynicism is well justified. The constitutional argument against requiring individuals to buy health insurance emerged only when a Democratic president and a Democratic-controlled Congress enacted it into law. Indeed, within days of the Fourth Circuit’s arguments, two of the Republicans seeking the 2012 presidential nomination found themselves explaining away their past positions in favor of an individual health insurance mandate.
As governor of Massachusetts, Mitt Romney proposed and won enactment of a state law that included an individual health insurance mandate. As president, Obama pointed to the Massachusetts law as a model for the law that Congress eventually passed.
Today, Romney – who is one step away from a formal announcement in the race – is trying to explain how the Massachusetts law can be good public policy but Obama’s is not. “Our plan was a state solution to a state problem,” Romney said in a May 12 speech at the University of Michigan. “His is a power grab by the federal government to put in place a one-size-fits-all plan across the nation.”
As a political argument, Romney’s position is just barely plausible. As constitutional law, however, Romney’s position is squarely at odds with the position being advanced in the court challenges to the federal law. If Massachusetts can enact a health insurance mandate, clearly the federal government can as well.
A few days later, former House Speaker Newt Gingrich, the first of the major GOP hopefuls to officially enter the presidential race, likewise had to try to reconcile his previous stands endorsing an insurance mandate with his criticism of Obama’s law as “a centralized health dictatorship.” In his book Real Change (2008), Gingrich wrote: “Finally, we should insist that everyone above a certain level buy coverage (or, if they are opposed to insurance, post a bond).”
Appearing on NBC’s Meet the Press on May 15, Gingrich stood by his position that “all of us have a responsibility to help pay for their health care.” But he insisted that “most libertarians” would be “relatively happy” with a law that gave individuals the option to post a health care bond instead of requiring them to buy health insurance.
As with Romney’s argument, Gingrich’s explanation is just barely plausible in political terms. As constitutional law, however, the difference between a health-care bond mandate and a health insurance mandate seems inconsequential. Either requires individuals to participate now in financing a health care market in which they will inevitably participate.
That was the essence of the Obama administration’s argument before the Fourth Circuit panel. “Health care is being purchased every day,” acting solicitor general Neal Katyal said. “The question is how to finance it.”
All three judges seemed to agree on Congress’ authority to try to solve that problem. In the most pointed exchange, Judge Andre Davis confronted Mathew Staver, representing Liberty University in the case, Liberty University v. Geithner, with the question how to pay for emergency care for the uninsured. Does Congress have no power, Davis asked, “to address in the aggregate what happens in this country every day?” Staver had no answer other than to repeat his view that Congress had no power to regulate what he called “non-economic inactivity.”
Virginia’s solicitor general Earle Duncan Gechtell had an even harder time in the second case argued on Tuesday, Virginia v. Sebelius. Katyal forcefully attacked Virginia’s legal standing to bring a court case based on passage of a state law that simply refuses to enforce the federal statute. A state could just as easily pass a law to oppose the war in Afghanistan or Social Security taxes, Katyal said. When Gechtell agreed, the judges were openly incredulous.
The appeals court arguments are, of course, only the second of preliminary rounds in a case that the Supreme Court will ultimately decide. There, Republican appointees hold a 5-4 majority over Democratic-named justices. The court’s challenge will be to shut out the political noise and decide the case on the law.