The Obama administration’s signature 2010 health care reform law heads back to federal appellate court in its highest-profile case on Wednesday, facing what might be the most balanced panel of judges yet in Atlanta.
The suit, brought by 26 states, challenges the constitutionality of the requirement that people buy health insurance. Wednesday’s hearing before the 11th Circuit is widely regarded as a dress rehearsal for an eventual Supreme Court hearing.
In January, U.S. District Judge Roger Vinson went further than any other judge by ruling the whole law should be “invalidated” as unconstitutional. The major piece of the argument centers on whether the federal government can require people to buy health insurance.
The states’ case will be argued by Paul Clement, a former U.S. solicitor general who has argued in front of the Supreme Court dozens of times. Acting U.S. Solicitor General Neal Katyal will continue his streak of presenting the administration’s position.
The three judges on the panel, randomly selected from the 11th Circuit, are not known for being strong ideologues either way. Judge Joel Dubina is an appointee of Republican President George H.W. Bush, while Judges Frank Hull and Stanley Marcus are both appointees from Democratic President Clinton.
“I think this is probably going to be as balanced a panel as we’ve seen, but who knows. You never know until you get to the oral argument,” said Ron Pollack, the executive director of Families USA and a former law school dean who has argued cases in front of the Supreme Court.
Ilya Shapiro, a lawyer for the libertarian Cato Institute, agreed. “I think it’s refreshing that you can predict less, based off their nominations,” Shapiro said.
Shapiro said there was a chance this case could focus less on jurisdictional issues, like whether the states have the right to sue the federal government over the law. There are also individuals who are party to the challenge, in addition to the states.
“This court, unlike the 6th and 4th circuits, hasn’t asked for supplemental briefing,” on standing and other technical issues, Shapiro said. “They may be okay with that and want to dive right into the merits.”
In a separate case where the state of Virginia is challenging the law, a panel of judges in the 4th Circuit focused heavily on the state’s ability to sue the federal government.
But Ian Millhiser, a lawyer at the Center for American Progress, says that doesn’t mean the states will get away without any challenge to standing.
“The court is allowed to raise the issue on its own, and to dismiss the case if they decide there’s no jurisdiction.... It doesn’t mean that they can’t raise it tomorrow, or even after the arguments,” Millhiser said.
This case will also differ from suits challenging the law in Virginia and Ohio last month, because the states are also suing the federal government over the expansion of the Medicaid program. Vinson did not uphold that argument, but the states are appealing that piece to the federal appellate court.
The arguments may also focus on Vinson’s decision to invalidate the entire health law, instead of just the parts related to the health insurance requirement. The administration argues that the law can exist on its own, even if the insurance requirement is struck down as unconstitutional.
“I believe it is very likely to not go anywhere near as far as Vinson did, in terms of how many pieces of statute he invalidates,” Pollack said.
“That’ll certainly be an issue. They’ll want to look at what the standard is, and what factors go into determining if he or she can sever that piece of the law,” Shapiro added.
This article appears in the June 8, 2011, edition of NJ Daily.