By Dave Andrusko
Depending on which account you read, a panel of federal appeals court judges is either raring to decide on the constitutionality of ObamaCare’s requirement that by 2014 almost all uninsured Americans buy medical coverage or is deeply troubled by a question of standing of a plaintiff.
The three-judge panel from the United States Court of Appeals for the Sixth Circuit in Cincinnati heard arguments for 90 minutes Wednesday, making it the second challenge to reach an appellate hearing. On May 10 the Court of Appeals for the Fourth Circuit in Richmond, Virginia “heard the appeal of a ruling against the insurance mandate,” reported Kevin Sack of the New York Times. “The Fourth Circuit panel consisted of three judges appointed by Democratic presidents, including two by Mr. Obama himself.” (Two of the three judges on the panel from the Sixth Circuit were chosen by Republican presidents.)
The discussion retraced a familiar debate over one component of ObamaCare: whether it goes beyond the legitimate powers of the federal government under the Commerce Clause to regulate what critics describe as “non-activity.”
In defending the requirement, Neal K. Katyal, the acting United States solicitor general, took two complementary approaches, according to news stories.
“Without the mandate, Mr. Katyal said, the law’s requirement that insurers provide coverage to all applicants, regardless of their health status, would simply encourage people to buy insurance after they got sick,” according to Sack. “’Congress is not regulating the failure to buy something, but the failure to secure financing,’ Mr. Katyal said.”
According to the Associated Press
“Acting U.S. Solicitor General Neal Kumar Katyal said the measure is needed to reduce health care costs and to protect those with pre-existing conditions. The coverage mandate will help keep billions of dollars in health care costs for the uninsured from being shifted to households with higher premiums and to health care providers, he said.”
But Robert J. Muise, senior counsel for the Thomas More Legal Center, argued that “This case transcends health care.” He urged the judges to reject any effort to equate activity and inactivity. “They’re mandating somebody to engage in commerce, so they’re effectively regulating inactivity,” Mr. Muise said. “This is where the line has to be drawn.”
The issue of standing arose when Katyal began the hearing by arguing “that the case should be dismissed because one of the plaintiffs, a Thomas More member named Jann DeMars, bought an insurance policy last October from her employer,” according to Sack. “In the original lawsuit, filed in March 2010, Ms. DeMars argued that she was entitled to sue because she was uninsured and would have to make burdensome choices to afford a policy in 2014. Because she now has coverage, Mr. Katyal said, Ms. DeMars can no longer demonstrate any imminent injury, which is required to mount such a challenge.”