Appeals Court Questioning Seems Sympathetic to Obamacare

Judges appear skeptical of argument that Congress can't regulate economic inactivity

The first appellate court to take up a constitutional challenge to President Obama's health care overhaul heard oral arguments Tuesday, and the analysts who listened in say the judges's questions suggested they're inclined to uphold the law, Politico's Jennifer Haberkorn reports. The judges seemed skeptical of Virginia's right to sue the federal government--could a state sue if it opposed the Iraq war?--and Liberty University's position that the Constitution's Commerce Clause does not allow Congress to regulate economy inactivity--in this case, choosing to not buy health insurance.

The three judges on the panel for the 4th Circuit Court of Appeals were selected at random, and all three selected turned out to have been appointed by Democratic presidents--two by Obama, the third by Bill Clinton. But that stroke of luck for the White House does not mean the Obama administration is taking the case lightly, NPR's Julie Rovner reports. Acting solicitor general, Neal Katyal, is arguing the case. Normally he would only argue cases before the  Supreme Court case.

As Haberkorn explains, much of the questioning centered on the "vegetable question"--if the government could make you buy health insurance, couldn't it also force you to buy other stuff that's good for you? As Virginia Attorney General Ken Cuccinelli told reporters, "If we cross this constitutional line with health care now, where the government can force us to buy a private product, and say it's for our own good, of course, then we will have given the government the power to force us to buy other private products, such as cars, gym memberships, or today's chosen vegetable of discussion, broccoli." But Katyal said health insurance is special. He told judges, "That is a virtually universal feature of human existence... Everyone is going to seek health care. Nobody can know precisely when."

Judge Diana Gribbon Motz asked Katyal how he'd define regulation in the context of the activity/inactivty debate. Katyal also said the government was attempting to regulate financing--"their means of payment for [health care], to avoid them externalizing the costs onto others?" One of the law's opponents, Georgetown University law professor Randy Barnett, told Haberkorn that Gribbon Motz's question was "significant" and showed she might have a problem with the law.

The case is expected to reach the Supreme Court sometime next year.