ThinkProgress filed the following report from Atlanta, Georgia.
The term “mixed bag” is generally used as a euphemism — when someone says that something was a “mixed bag,” they generally mean that the bag is full of bad news. Today, however, the Eleventh Circuit served up a bag full of mysteries regarding whether they will deem the Affordable Care Act (ACA) constitutional.
The plaintiffs in this case make the most common argument conservatives levy against the ACA — its provision requiring most Americans to either carry health insurance or pay slightly more income taxes violates the Constitution because Congress cannot “regulate inactivity” — only the states have this power — and therefore people who don’t buy insurance are somehow off limits.
The judges, however, expressed extreme skepticism at this argument. At one point, Judge Frank Hull, a conservative Clinton appointee nominated as part of a compromise with the GOP-controlled Senate, announced outright that “this whole inactivity business just doesn’t get me.” Judge Stanley Marcus, a similar compromise Clinton appointee, said on several occasions that the plaintiffs’ entire states’ rights theory didn’t make sense.
At the same time, however, the judges also asked some questions that suggest they are leaning the other way. They focused on severability — the question of how much of the law they need to kill if they strike down just one part — far more than the other two courts to hear this case. They also asked several questions that suggested they were considering the plaintiffs’ absurd argument that, under the ACA, Medicaid is now unconstitutional because it is too generous to the states. Even Tea Party Judge Roger Vinson rejected this Medicaid argument, so it is nothing less than bizarre that a court of appeals panel would pay it any attention.
Judge Marcus also raised an argument that has been almost entirely absent from these cases so far. The Constitution contains a laundry list of powers that Congress use to pass laws, one of which is the power to regulate “commerce…among the several states.” The plaintiffs argue that a law which imposes a consequence on people who don’t buy something is somehow not a commercial regulation, and therefore exceeds this power.
Marcus pretty clearly did not sympathize with this states’ rights claim at all, but he also seemed to suggest that some other part of the Constitution might create an individual right not to be required to purchase a product. This argument was also rejected by Judge Vinson, it has literally no basis whatsoever in existing precedents, and it closely resembles the reasoning of an infamous and long-ago abandoned case called Lochner v. New York.
For their part, the plaintiffs did not help themselves by making a pretty massive concession. They agreed that Congress may regulate how people buy and sell health care, so a law requiring them to finance such purchases through insurance is just fine; they just object to requiring people to actually purchase insurance in advance. Nothing in the Constitution or precedent suggests that Congress’ power to require people to buy insurance is like a light switch that suddenly flips on the moment a person shows up at the emergency room.
In the end, the judges did little more than leave the lawyers guessing. They were highly dismissive of the plaintiffs’ core arguments, but also floated new, unheard of challenges to the law that have no basis in the Constitution, precedent or even the plaintiffs’ briefs. If the judges ultimately strike down the law on one of these freshly created theories, it’s difficult to see how they will be upheld by the Supreme Court.