The Sixth Circuit heard oral argument in Thomas More Law Center v. Obama yesterday on the constitutionality of the Patient Protection and Affordable Care Act.Â
Attorney Robert Muise argued on behalf of the Thomas More Law CenterÂ and Solicitor General Neal Katyal argued on behalf of the federal government.Â The three-judge panel included Circuit Judges Boyce F. Martin, Jr.,Â and Jeffrey S. Sutton, and United States District Judge James L. Graham, sitting by designation.Â The audio recording of the argument is available here.
Both attorneys were brilliant.Â They cogently articulated the issues; demonstrated mastery of the facts, briefs, and previous cases; responded forthrightly and even wittily to the judges' questions; and persuasively expressed the underlying constitutional values that are at stake.Â It was a forensic masterpiece.
According to Philip Klein of Beltway Confidential, Ilya Shapiro of the Cato Institute (whom I had the honor and pleasure of debating on this question)Â attended the oral argument andÂ is reportedly "cautiously optimistic" that the appellate court will reverse the decision of the District Court and strike down the federal statute.Â I disagree.Â Although the two Republican judges on the panel asked Solicitor General Katyal a number of tough questions and expressed skepticism about this law, Katyal not only parried their queries – he met them head on.Â
There were severalÂ key points that arose during oral argument that militate in favor of the constitutionality of the Act:
1.Â The opponents of the Act assert that Congress lacks the power to force people to purchase a product or service, and yet they do not invoke any provision in the Bill of Rights to support that assertion.Â Instead they contend that such a limitation is inherent in the Commerce Clause.Â Essentially, they are attempting to engraft a "personal freedom" limitation onto the Commerce Clause.Â It will be difficult to persuade the courts to do that in the absence of any evidence that there is a constitutional right at stake.
2.Â Everybody is in the market for health care.Â If someone has a heart attack, he will be taken to an emergency room and the hospital will have to treat him whether he can pay for it or not.Â This law is not "forcing" people into the market for health care.Â It is simply regulating how people pay for health care.Â This fact was illustratedÂ by the fact that the lead individual plaintiff in this case – who had earlier claimedÂ that she would refuse to purchase health insurance – had in fact purchased health insurance for her child, thus throwing into question whether the suit would have to be dismissed for lack of standing.Â Her decision to purchase health insurance drives home the point that no-one is outside the market for health care.
3.Â Congress has made specific findings that people's failure to have health insurance is economic behavior; and the fact that 50 million people are uninsured is havingÂ not just a substantial but a catastrophic effect on the health care market.Â This fact was not controverted by the plaintiff nor was it challenged by the court.Â The courts must defer to Congress' findings; so long as Congress has a rational basis for believing that the unavailability of affordableÂ health insurance is affecting interstate commerce, and that the individual mandate is essential to the remainder of the Act, the Courts must accept those facts as true.
4.Â The government contends that even if the conduct being regulated is not "economic activity" that can be regulated under the Commerce Clause, that Congress has the power to enact the individual mandate under the Necessary and Proper Clause.Â The plaintiff did not dispute the fact that the individual mandate is essential to make the rest of the law work – specifically, that by expanding the pool of insured people that the cost of health insurance would be reduced, and that the government could not force the insurance companies to cover preexisting conditions unless everybody is required to purchase health insurance.Â The "necessity" for this provision remains unchallenged.
5.Â The plaintiff's Â "broccoli" argument was brought up: "If the government can make people purchase health insurance for their own good, then it can also make them eat broccoli."Â Â The argument is a "slippery slope" or "parade of horribles"Â and it derives part of its strength from the fact that so many people don't like broccoli!Â General Katyal distinguished broccoli from health insurance, noting that when people show up at the grocery store and demand free broccoli the store does not have to give it to them, but when people show up at the hospital in critical conditionÂ the hospital has to treat them in accordance with EMTALA and federal regulations.Â The "anti-dumping" laws have been held to be constitutional; under the Commerce Clause Congress has the power to require hospitals to treat people whom they would choose not to.Â It is accordingly constitutional, Katyal argued,Â to require people to purchase health insurance.Â Â The plaintiffs respondedÂ that this is bootstrapping argument – that the federal government "created the problem" by enacting the anti-dumping laws in the first place.
6.Â Finally, Katyal noted that it is not strictly accurate to say that the law will "force"Â people to purchase health insurance.Â The individual mandate is not a criminal law.Â Â Instead, the penalty is a tax on income.Â People may choose not to purchase health insurance so long as they are willing to pay a penalty of 2.5% of income up to a maximum of $675, and if their income is below a threshold level they are not subject to the penalty.
It was a great argument.Â We will await the decision of the Sixth Circuit, as well as the results from three other federal Courts of Appeal: the Fourth Circuit (where oral arguments were already held), the Eleventh Circuit, and the D.C. Circuit.
Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790