A conservative panel of appellate judges gave the Obama administration’s signature health care reform law a mixed reception during oral arguments on the latest legal challenge to the law on Friday—and signaled that overturning the 2010 law could have repercussions beyond health care.
The case before the D.C. Circuit Court is the fourth challenge to the 2010 law to be considered by a federal appellate court, and while the issue is considered likely to reach the Supreme Court, legal experts say the other cases are probably going to get there first.
But the three-judge panel randomly selected to hear the D.C. case included two influential conservative judges with close ties to justices on the Supreme Court. If they vote to uphold the law, it could predict how the high court resolves the cases, court watchers said.
It’s difficult to predict how the judges will rule on the basis of their questions. But the conservative judges appeared not to have made up their minds to overturn the law. One judge suggested that overturning the health care law could have broader implications, potentially imperiling any plan to privatize Social Security, Medicare, or other safety-net programs.
The case, brought by five people who did not want to buy health insurance for religious reasons, challenged the health care law’s requirement that every citizen do so or face a penalty fee beginning in 2014. Their lawyer, Edward White, described the provision requiring individuals to buy insurance as an unprecedented expression of congressional authority and outside the bounds of Congress’s constitutional powers.
Deputy Assistant Attorney General Beth Brinkman defended the law on two separate grounds, saying that the law passed constitutional muster because the mandate was a necessary component of a broader scheme to regulate the country’s insurance market. Brinkman also argued that the penalty for not buying insurance effectively functioned as a tax, which Congress is authorized to impose.
Judge Brett Kavanaugh, a former clerk to Supreme Court Justice Anthony Kennedy and a former official in the George W. Bush White House, asked whether it was appropriate for the court to intervene in what “could be the blueprint for a privatized social safety net.” If the court strikes down the health care law, it would also mean it might need to strike down laws providing for the privatization of other social services, like Social Security, he said.
“Why should the court get in the middle of that?” he asked.
Kavanaugh also expressed some reservations about the health care law, however, noting that the power to mandate purchases was unprecedented, and that ruling that Congress could do it might open the door to less pleasant mandates or criminal penalties for failing to comply.
Judge Laurence Silberman, a Reagan appointee, pointed out that a Supreme Court precedent about the regulation of wheat farming included a line of reasoning that he said was akin to a mandate to purchase a particular product.
“I don’t know how you distinguish it,” he said, though he joked that he might agree with White if he said the case was wrongly decided.
The third judge on the panel was Harry Edwards, a Carter appointee, who seemed most inclined to uphold the law.
It’s possible that the panel will choose to sidestep constitutional questions about the case by ruling they don’t have jurisdiction to hear it. A federal law dictates that individuals with objections to their tax assessments can’t oppose them in advance—they must pay the tax and go to court afterwards to seek a refund. If the court agrees that the penalty for not purchasing insurance is akin to a tax under that law, they could dismiss the case, effectively postponing the constitutional issues until 2015, when the first penalties come due.
That is the tack taken by the 4th Circuit Court of Appeals in Richmond, Va., earlier this month, which found that the penalty functioned as a tax for the purpose of the law, which meant they were not allowed to consider the case yet.
Kavanaugh seemed particularly interested in this line of argument, saying on several occasions that he thought it was a very “close” call whether the exact language of the health care law put it in the tax category.
But the government did not argue in favor of such a legal interpretation.
It will likely be months before the court rules on this case. That may or may not come before the Supreme Court chooses to take up the issue. The timing of that decision rests in part on whether the government asks for a rehearing of the case in the 11th Circuit, the only circuit court to strike down the law so far. The government’s application to ask for re-hearing is due next week.