Why You Should Listen to the Affordable Care Act Appeal

To understand why today was a positive step for the law's supporters, take a few hours to hear the appeals court debate online


The bad news for opponents of the Patient Protection and Affordable Care Act? The three-judge panel of the 4th U.S. Circuit Court of Appeals that heard the oral argument in the case Tuesday morning was composed entirely of Democratic appointees, two of whom were appointed by President Obama himself. The good news for opponents of the new federal health-care law? They have a few months now to prepare pithy or trenchant spin for the day this summer when the panel upholds the law.

How one-sided did the hours of argument seem to wizened observers? Thomas Goldstein, the powerhouse Washington lawyer who argues frequently before the United States Supreme Court and who oversees the prominent website Scotusblog, declared shortly after oral argument that he was "100%" certain the panel would uphold the Care Act. Before high noon Tuesday, Goldstein already had moved on to the question of whether Virginia's aggressive attorney general would ask the entire 4th Circuit to hear the case (the smart move) or try to get the Supreme Court involved directly (the likely one).

What you really need to know is that Tuesday was a great day in court for supporters of the Care Act and a very tough one for its opponents.

At CBS News, my colleague Jan Crawford, who covered the Court for years and wrote a best-selling book about it, already had moved on, too, even before the argument had started. She focused upon one of the next oral arguments scheduled over the Affordable Care Act -- in the 11th Circuit out of the Florida-based challenge. She wrote: "That challenge will be heard next month in an Atlanta-based federal appeals court. With the Virginia case now seeming like a slam dunk for the administration, opponents will need a good opinion (either a majority or dissent from a respected judge) out of the 11th Circuit as this issue goes into the Supreme Court."

But don't take their words for it. And certainly don't take mine. If you really want to have an informed view of what the health care law is and is not about, sit back, spare a few hours, and listen to to the audio of the arguments (you can do so here courtesy of the 4th Circuit). You can hear things in the voices and cadence of the judges and the lawyers that cannot be translated onto paper, much less chronicled by reporters. No matter which side of this roiling debate you are on, you will learn something by listening that you didn't already know and weren't likely to otherwise hear about.

The first argument was Liberty University v. Geithner and the first attorney voice you hear is that of Mathew D. Staver, representing the Jerry Falwell-created institution of higher learning that argues the Affordable Care Act's "individual mandate" violates the Commerce Clause of the Constitution as well as the First Amendment. And from the get-go, less than five minutes into the hearing, as you would want judges to do in these circumstances, one of the panelists asked the question that goes to the core of the dispute: is a person's decision to opt-out of health insurance an "activity" that can be regulated by Congress or an "inactivity" that cannot?

Isn't opting out of health insurance a "personal choice" and thus activity? asked 4th Circuit Court Judge Dianne Gribbon Motz of Staver. No, Staver responded, a person's "mental choices ... to simply be idle is not an activity." And then for the next 15 minutes, judges and lawyer sparred over the meaning of United States Supreme Court precedent -- both recent and ancient history -- which has sought to interpret the contours of the Commerce Clause. If the judges (and, ultimately, five justices of the High Court) believe the opt-out choice is an "activity," then the Affordable Care Act will survive challenge. If they don't, it won't.

About 20 minutes into Staver's argument, Judge Motz bravely brought up what she called the "broccoli question," a reference to the parade-of-horribles argument made by opponents of the Act who claim that an interpretation of the Commerce Clause that allows the statute to go into effect will necessarily leave vast amounts of otherwise private life -- like the question or whether to eat broccoli or not -- subject to federal regulation. "If you were to allow Congress to force the purchase of health insurance in the private market then you would therefore have to allow Congress to regulate the food industry to force certain kinds of food to be consumed," Staver argued to judges who didn't sound like they were buying the argument.

Then it was Neal Katyal's turn -- here he was defending a trial judge's ruling that upheld the Care Act. The acting Solicitor General of the United States also faced immediate questions from the panel about whether the Act was designed to regulate "activity" or "inactivity." We're not so focused as much upon words that "can break down semantically," Katyal told Judge James A. Wynn. "We're asking what the Commerce Clause is about... Is the conduct that is being regulated have a substantial effect on commerce. and here Congress made specific findings [that it does]" (prompting another panelist later in the argument to ask whether the Supreme Court anymore cares about Congressional findings).

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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