On Wednesday the Eleventh Circuit will become the third court of appeals to hear oral arguments in a lawsuit challenging the landmark Affordable Care Act. Although the legal significance of a case has very little to do with the identity of the parties, this case is likely to be one of the most closely watched ACA cases because its plaintiffs include more than two dozen Republican state officials acting on behalf of their states, and because the case against the ACA — weak though it may be — will be argued by conservative superlawyer Paul Clement.
The three judge panel hearing the case includes Chief Judge Joel Dubina, a George H.W. Bush appointee, and Clinton-appointed Judges Frank Hull and Stanley Marcus. Court-watchers, however, should be cautious about reading too much into this panel because of its apparent partisan makeup. Judges Hull and Marcus are both compromise nominees Clinton selected in order to overcome obstruction from the Republican-controlled Senate — indeed, Judge Marcus is a Republican who was previously appointed to a federal district court by Ronald Reagan. Dubina’s partisan credentials might be a bit more secure, as his daughter is a GOP congresswoman who voted to repeal the ACA.
Nevertheless, it is unlikely that this panel will take the same Cee Lo Green attitude towards President Obama’s greatest legislative accomplishment that Judge Roger Vinson took in the court below. Vinson is the only judge in America to toss out the entire Affordable Care Act because he objects to just one provision — and he based his analysis of this question on a brief submitted by an anti-gay hate group. His opinion includes an entirely gratuitous nod to the Tea Party, and a Center For American Progress examination of his opinion identified at least 40 factual and legal errors. Because Vinson went so far out of his way to flag his Tea Party sympathies he could wind up spooking the Eleventh Circuit panel more than he stands to convince them to strike down the law.
ThinkProgress also spoke to several former Eleventh Circuit law clerks who believe that, while this panel does lean right, the ACA is unlikely to receive the same kneejerk opposition in the court of appeals that it received from Judge Vinson. Two former law clerks emphasized that Judge Marcus is a judicial minimalist who will not want to reach the constitutional merits unless he absolutely has to — and these lawsuits will have to overcome at least four procedural barriers before a court will be allowed to reach the merits. Both of the courts of appeals to hear challenges to the ACA have suggested that they may dismiss the case on procedural grounds, and even ultra-conservative Judge Jeffrey Sutton dropped hints last week that he may not be able to strike down the law.
One former clerk also pointed out that, while Hull has a reputation as a conservative, she earned this reputation largely based on her very conservative decisions in criminal and individual rights cases — cases where the conservative position is also the pro-government position. In cases seeking to limit Congress’ authority to regulate, all three of the panel’s judges have rejected conservative claims that a federal law exceeds Congress’ power to regulate interstate commerce. In other words, Hull’s record is consistent with that of a very conservative judge, but it is also consistent with that of a judicial minimalist such as Judge Marcus.
So the bottom line is that the Affordable Care Act will go to court Wednesday in front of a fairly conservative panel. At the same time, however, the case against the ACA is hindered by procedural barriers, an exceptionally weak district court opinion, and a panel that may be more inclined towards minimalism than towards the kind of maximalist judicial activism that drives this litigation. If Wednesday’s panel votes to uphold the law, that will be a very good sign that the law is on safe ground moving forward.