Yesterday in Pensacola, Fla., Judge Roger Vinson heard oral arguments on the summary-judgments motions in the 20-state litigation challenging Obamacare. A few quick observations having heard the arguments and his questioning:
Judge Vinson seemed very amenable to the plaintiffs’ position on the Commerce Clause, recognizing the failure to purchase health care as inactivity rather than activity that is subject to regulation. He noted at one point that there is no case in which the Supreme Court has held that inactivity is activity. That goes quite a way toward victory on this point for the plaintiffs.
Judge Vinson probed the DOJ lawyers as to what the logical stopping point would be of their theories, and did not, to my mind, get any satisfactory answer. Their argument seemed to boil down to “health care is unique and therefore this wouldn’t apply in other areas.” But when Judge Vinson asked how that market was different than the market for shoes or transportation, they simply retreated to their argument that, at least as a class, everyone is guaranteed to use health care, and this law does no more than regulate how to finance it.
Plaintiffs used about half of their argument time on their claim that the dramatic expansion of Medicare amounts to coercion and commandeering of the states. This is a claim that Judge Vinson telegraphed skepticism about in his opinion on the motion to dismiss, and he didn’t seem significantly more encouraging during these arguments. In particular, he seemed wary to decide the issue on summary judgment as the effect of the law on the states could be considered an issue of fact and not pure law.
Judge Vinson specifically asked the plaintiffs to discuss severability and the availability of injunctive relief, two issues that only would come into play if they win on at least one of their claims. This is a good sign for the plaintiffs. However, he also agreed with DOJ lawyers that deciding whether or not the law as a whole would have been passed absent the individual mandate was a highly speculative exercise, suggesting he would sever some provisions at least. Plaintiffs are arguing that the whole law stands or falls with the individual mandate, and DOJ has conceded that several important insurance regulations governing preexisting conditions and pricing of insurance would have to be stricken if the mandate is found unconstitutional — significantly more than was struck down with the mandate in the Virginia case decided Monday. That leaves a lot of the bill up in the air, including many provisions that seem more tangential to the law’s purpose and would likely be left to stand even without the mandate (which arguably would have provided their chief source of funding), and major insurance regulations and Medicaid changes that could go either way.
A couple memorable moments: First, Judge Vinson put the DOJ lawyer in a tough spot when he stated that, at times in his life, he hadn’t had health insurance. He did get health care during that time, but paid all his bills in full and therefore wasn’t the drag on the system that the government assumes all uninsured must be. Not something I would have wanted to hear were I in the lawyer’s shoes.
Second, I found it amusing that the DOJ lawyer was concerned about the uninsured being unable to afford even “routine” medical care, like angioplasty. Angioplasty, apparently, is now routine. I guess the term “routine medical care” to me means something more like annual checkups, flu shots, mammograms, and the like, but perhaps times are changing.
Judge Vinson didn’t give a time frame for deciding the case, but he did say he would have his decision out “as quickly as possible.” He handed down his decision on the motion to dismiss one month after arguments, but this time may take slightly longer, given the upcoming holidays. Opponents of Obamacare should be sanguine after these arguments, but regardless of the result, this case won’t ultimately be decided until the Supreme Court has its say. Still, another decision reaffirming constitutional limits on government would be a great way to start off 2011.