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).

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).

"Congress is regulating activity," Kaytal told the panel. "The activity is participation in the health-care market ... that is a virtually universal feature of human existence. Everyone is going to seek health care, nobody can know precisely when, providers cannot opt out of providing it, that is if you show up, destitute, there is still a duty to treat, and those costs are sporadic and unknowable. And those are what makes this market different." Through the "individual mandate, Congress is regulating the means of payment for the health care," Katyal said, not forcing people to buy something they wouldn't otherwise have to pay for eventually when they get sick.

So the Care Act's opponents are saying the federal government is trying to regulate an individual's choice to stay out of the health-insurance market. And the feds are saying that they are regulating health care itself by reforming health insurance to distribute the costs and risks among a larger pool of participants. Incidentally, if either of the attorneys or the judges mentioned the trial judge's ruling below even once during the oral argument, I failed to hear it. This was an argument purely of law, not of the facts of the record below, as is typically the case when a dispute gets resolved on pre-trial motions.

Next up on Tuesday's docket was Virginia v. Sebelius, the appeal from U.S. District Judge Henry Hudson's landmark ruling that first struck down the Act's "individual mandate." In this case, it was Katyal's turn to go first. And he immediately went after Virginia's "standing" to bring a case on behalf of its citizens in this fashion. Standing, don't forget, is often called a "technicality" when it is invoked by layman to explain a court's ruling. But the justices frequently call it "a way out" when they want to rid themselves of a case without tackling the merits of it. And it is a big component in all of these challenges.

We've already heard from Katyal. So let's skip ahead to E. Duncan Getchall, Jr., the Commonwealth attorney who rose to defend Judge Hudson's decision on behalf of his state and many others. Having sat through the day's first argument, he surely knew he was in for a  tough battle when he rose to make his case. Getchall told the judges that the Care Act caused a "sovereign injury" to Virginia that permitted it under federalism principles to defend itself and its own health-insurance-related statues (and not just its citizens) from the onus of the  individual mandate. Why? Because Virginia has a state statute (passed in conjunction with the passage of the Affordable Care Act) that precludes anyone from forcing anyone else to buy health insurance.

If Virginia were to pass a law that precluded anyone from paying Social Security would it have standing to go to federal court to challenge federal entitlement laws? Judge Motz asked Getchall. "We would have standing to lose," he responded, but we would still have standing in federal court. Back and forth it went from there -- with the judges pushing Getchall to explain why the federal courts should entertain state-based challenges like this one and Getchall resolutely defending state sovereignty. "There is a federalism limit [to the Necessary and Proper Clause]," he even told the judges at one point, no doubt earning him the eternal devotion of Tenth Amendmentistas everywhere.

It is obviously difficult to distill a series of 45-minute arguments into three paragraphs each, and I know that I omitted several interesting legal angles, which I hope will be culled by others. But 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. That dynamic (which had to do with a random drawing of judges) could easily change within the next six weeks or so when the 11th Circuit, the 6th Circuit, and the 3rd Circuit also hold their oral arguments on Care Act appeals. Either way, we are one step closer to the end of all of this, and you can bet that the justices were paying attention up the road a bit from Richmond.  

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