Appeals Court to Decide Obamacare Fate in States' Suit

Thursday, 09 Jun 2011 11:02 AM

By David A. Patten

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The fate of the 26-state lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act now rests in the hands of a three-judge panel, following presentation of oral arguments to the 11th Circuit Court of Appeals in Atlanta on Wednesday.

Karen R. Harned, an executive director for the National Federation of Independent Businesses (NFIB), told Newsmax in an exclusive interview shortly after the hearing that the judges did not telegraph which way they are leaning.

“I feel like we were persuasive, but who knows how they’ll rule? I think that we should win this case, and win it at every step at the way,” she said.

The judges peppered federal attorneys with questions about the federal government’s constitutional authority to impose an individual requirement to purchase health insurance — the key issue that ultimately may decide the outcome of the case, Harned said.

“If they can compel them to do that, what can they not require them to purchase?” Harned told Newsmax.

Wednesday’s case was the latest in a series of court battles regarding the constitutionality of the president’s signature legislation.

On Tuesday, the White House stated on its blog: “Opponents of reform claim that the law’s individual responsibility provision exceeds Congress’ power to regulate interstate commerce because it penalizes ‘inactivity.’ They are wrong.”

The government contends that when individuals choose not to obtain insurance, they are in fact making an economic decision that ultimately affects everyone else — because sooner or later everyone needs healthcare.

Opponents to the legislation, however, say based on that logic, there would be no limit on government’s ability to intrude in people’s lives in any arena, due to anticipated consequences of their inactivity.

So far, lower court rulings have broken strictly along party lines. Republican-appointed judges have found Obamacare’s individual mandate unconstitutional, while Democratic-appointed judges have ruled that it passes constitutional muster.

At first blush, therefore, it would appear Obamacare supporters should brace for a setback at the hands of the three-judge panel that convened Wednesday in Atlanta.

Although Chief Judge Joel Dubina was appointed to the 11th Circuit by former President George H.W. Bush, Judges Frank Hull and Stanley Marcus were appointed by former President Bill Clinton.

But that panel could harbor some stealth conservatives. Marcus was appointed to a U.S. District Court judgeship by former President Ronald Reagan in 1985. Also, Hull frequently has aligned himself with the 11th Circuit’s conservative wing.

One indication the Obama administration is taking the lawsuit quite seriously: It dispatched its top lawyer, acting U.S. Solicitor General Neal Katyal, to present the government’s oral arguments Wednesday. Such cases are usually presented by a Justice Department attorney.

Another sign the stakes are high in the case: About 50 protesters gathered outside the courtroom, most of them shouting anti-Obamacare chants. About 10 healthcare-reform supporters were also on hand, according to media reports.

Shortly after the hearing, Florida Attorney General Pam Bondi issued a statement expressing confidence that the states and the NFIB had presented a strong case.

“The federal government could not rebut our argument that the individual mandate is an unprecedented intrusion on individual liberty,” she stated. “The federal government could also not articulate any principled limit on Congress’s power. Simply put, the federal government failed to justify Congress’s decision, for the first time in American history, to force citizens to purchase a product.”

Harned said the panel probably will issue its ruling in September. Obamacare opponents hope the case works its way through the appellate courts fast enough to get on the U.S. Supreme Court’s docket in time for a June 2012 decision.

That timing could present serious political risk for the president, if his healthcare reforms are invalidated on the eve of the 2012 elections.

“I still think we have a realistic shot,” Harned told Newsmax. “That’s what we’d love to see.”

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