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Tougher Judges, but Possible Dismissal in Cincinnati Health Law Case Tougher Judges, but Possible Dismissal in Cincinnati Health Law Case

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Tougher Judges, but Possible Dismissal in Cincinnati Health Law Case


Solicitor General Neal Katyal will defend the administration's health care reform law before a three judges, two of them appointes by Republicans.(Alex Wong/Getty Images)

The Obama administration faces a tougher panel of Republican-appointed judges as it defends the landmark health reform law in federal appellate court for the second time, but there’s a chance the case could get thrown out of court.

Solicitor General Neal Katyal and the conservative Thomas More Law Center will present arguments to a three-judge panel on the 6th Circuit of Appeals in Cincinnati on Wednesday. The case is widely considered to be just one more stop on the way to the Supreme Court.


In an odd twist, the administration on Friday asked the court to consider dismissing the case, because one of the plaintiffs has purchased health insurance from her employer since October 2010.

The administration argues that because the plaintiff, Jann DeMars, already has insurance, she can’t claim that the health law’s requirement that people buy health insurance in 2014 will harm her. Thomas More Law Center notified the administration and judges of DeMars’s health insurance in a May 25 letter.

Thomas More Law Center disagrees, saying that DeMars’s current health insurance may not cover all of the services that will be required by the federal government. The Health and Human Services Department has yet to outline exactly what benefits insurance plans will have to provide to qualify as coverage.


It is unclear if the judges will address the motion before oral arguments on Wednesday.

The randomly selected panel is made up of two Republican judges, including President George W. Bush appointee Jeffrey Sutton, who is well known for defending states' rights. The other Republican judge is James Graham, a district court judge temporarily brought up to the federal appellate level, appointed by President Reagan.

Judge Boyce Martin, appointed by President Carter, is the third judge on the panel.

In contrast, the three judges who heard oral arguments in the Virginia case earlier this month were all Democratic appointees.


“The questioning will probably be a little less one-sided as the 4th Circuit,” said Washington and Lee University law professor Tim Jost, who advocates for the law’s constitutionality.

This time the administration gets to play offense. A district court judge in Michigan ruled that the health care law’s requirement that people buy health insurance was constitutional; the Thomas More Law Center appealed the decision to the 6th Circuit. In Richmond, the administration appealed a ruling that the law was unconstitutional.

Another positive sign for the administration is the judges’ request that both sides submit arguments on whether the conservative group has the right to sue the health law in federal court, even though the administration originally had not challenged the conservative group’s standing. That is a strong signal that judges will consider the conservative group’s ability to sue over the constitutionality of the law.

The major arguments over the case are similar to those made in Virginia. The Thomas More Law Center is challenging the government’s ability to require people to buy health insurance. The administration argues that the law is within Congress’s power, because health care is something everyone needs, and requiring insurance is merely a way to regulate financing of the market.

The 11th Circuit Court of Appeals will hear a third case challenging the health care law on June 8. Arguably the highest-profile challenge to the law with dozens of states party to the case, the arguments will be heard by a panel of two Democratic judges and one Republican judge.

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