Patterico's Pontifications

6/8/2011

Eleventh Circuit Skeptical of Obamacare? (Update: Listen Now!)

Filed under: General — Aaron Worthing @ 12:38 pm



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Update: Listen now, here. (thanks @gabrielmalor)

Update (II): Ilya Shapiro shares his thoughts on the argument, here.

One should only be cautiously optimistic here.  We have two Democratic appointees (although one was originally appointed to the District Court by Reagan) and one Republican, and reading the tea leaves in oral argument is tough.  But this is still pretty encouraging:

Acting U.S. Solicitor General Neal K. Katyal faced off against former Bush administration Solicitor General Paul Clement in what has become the largest and broadest challenge to the healthcare law. In all, 26 states and the National Federation of Independent Business joined in urging the judges to strike down the law.

And in an ominous sign for the administration, the judges opened the arguments by saying they knew of no case in American history where the courts had upheld the government’s power to force someone to buy a product.

That argument is at the heart of the constitutional challenge to the healthcare law and its mandate that nearly all Americans have health insurance by 2014.

“I can’t find any case like this,” said Chief Judge Joel Dubina of the 11th Circuit Court of Appeals. “If we uphold this, are there any limits” on the power of the federal government? he asked.

Judge Stanley Marcus appeared to agree. “I can’t find any case” in the past where the courts upheld “telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?”

So that is two skeptics, maybe.  And then there is the third judge:

Judge Frank Hull, the third member of the panel, repeatedly asked the lawyers about the possible effect of the court striking down the mandate, while upholding the rest of the law. She said the government had exaggerated the importance of the mandate. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.

So Hull seems to think the question is about whether the mandate is severable, not whether it can be upheld.  (For a discussion on the doctrine of severability, go here as a starting point.)  Interesting…

Now I should caution you that every lawyer has had the experience of leaving the court with signals that positive and still lost.  But this oral argument seems to have gone well.

Also I read somewhere they are going to air it tonight on Tv.  I will try to find video if and when that happens.  It should be interesting.

[Posted and authored by Aaron Worthing.]

46 Responses to “Eleventh Circuit Skeptical of Obamacare? (Update: Listen Now!)”

  1. there you go, a non-weiner post. :-)

    Aaron Worthing (e7d72e)

  2. “If we uphold this, are there any limits” on the power of the federal government? he asked.

    To channel the wicked witch of the west:

    Are you serious? Are you serious?

    iconoclast (bbd5ee)

  3. Thanks, Aaron.

    And this is great to see they are focused on what is fundamentally wrong with Obamacare.

    I sure hope Hull’s severable discussion means what it sounds like it means. I didn’t realize Frank is a woman (but she is).

    Dustin (c16eca)

  4. To channel the wicked bitch of the west…

    Comment by iconoclast

    Ftfy…

    Aaron Worthing (e7d72e)

  5. dustin well, where it can drive you crazy is that maybe they are just looking for a way to explain away the problem… sometimes when they say that, they are saying, “how do we write an opinion to deal effectively with that problem and give you the victory you want?” so tough questioning can literally mean the opposite of what this article implies.

    Aaron Worthing (e7d72e)

  6. Comment by Aaron Worthing — 6/8/2011 @ 12:45 pm

    I like dogs too much to use that label for her.

    iconoclast (bbd5ee)

  7. “how do we write an opinion to deal effectively with that problem and give you the victory you want?”

    Well crap.

    I can see it that way now.

    It’s like they are playing devil’s advocate, and leading one side towards some kind of BS result.

    It seems clear, once this issue is raised, that this is beyond the powers of a limited government. Somewhere along the lines, we have gone way too far, but this is certainly too far.

    And I guess they want to find a way to make this compatible with precedent. How do you clearly limit what the commerce clause can do, without implicating cases that go back as far as Wickard? It would be easy for me, since I’d just overrule the whole lot, but then… no one would be crazy enough to judicialize me.

    Dustin (c16eca)

  8. Dustin

    that being said, these kinds of questions are usually a good sign…

    Aaron Worthing (e7d72e)

  9. She said the government had exaggerated the importance of the mandate.

    Well, the government seems to have claimed various things at various times about this legislation and how to look at various aspects of it. Remember the whole “It’s a fee, not a tax” and the “It’s a tax not a fee” circus earlier this year? The ol’ throw the spaghetti against the wall and see what sticks approach to argumentation.

    It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.

    Where do people get these numbers? Even the Obama administration couldn’t keep them straight and depending on the audience and agenda being pursued at the moment they went up and down 20MM without them blinking an eye. And now the judge will assign some validity to them in rendering a judgment? Based on what factual basis does she explain the 40MM difference? Sheesh.

    It seems like peeking into this judge’s mind is akin to looking behind the curtain into a restaurant’s kitchen – not a pretty site.

    in_awe (44fed5)

  10. in awe

    that is a pretty bogus argument.

    if insurance companies have to accept pre-existing conditions, then alot of people will drop their insurance, wait until they get since and then buy it. if enough people do that, that will bankrupt the insurance industry. That isn’t my theory, that is the government’s theory, in arguing that it is necessary and proper legislation.

    Aaron Worthing (e7d72e)

  11. How do you clearly limit what the commerce clause can do, without implicating cases that go back as far as Wickard?

    When the judiciary ignores the clear language of the Constitution along with Congress and the Executive there doesn’t seem to be much recourse.

    iconoclast (bbd5ee)

  12. The government also said only 7 percent of employers would kick workers out of their health insurer plans, but yesterday that number suddenly and “unexpectedly” became thirty to fifty percent of employers. So forgive me if I don’t believe the numbers that Obama is shuffling around to save his socialist enterprise.

    eaglewingz08 (74f660)

  13. Yes, it’s important which questions are being asked. And the question of severability might indicate some nice things in the offing.

    I’d feel a lot better if there were some other questions on the docket, such as:

    “Which enumerated power in the Constitution says they can do this exactly?” or,

    “Can you believe they thought they could pass this thing off on us?” or,

    “Did the President actually sign his name on this thing?”

    Gesundheit (d7ea47)

  14. p.s. Thank you – AT LAST – for a post that has no remnant or shred of Congressman W*#ner.

    And then you had to go and stick his name in the comments. If I never hear his name again it will be too soon.

    Gesundheit (d7ea47)

  15. The biggest point is the severability. If they find the individual mandate unconstitutional but find the rest of the law intact, get ready for single payer, the worst of all scenarios.

    If insurance companies have to take every customer, regardless of a preexisting condition, without having the healthy to share the risk, there is no way they can turn a profit or stop from losing a lot of money.

    In turn, the current insurance companies will fold, leaving the government to fill the vacuum that will occur.

    Which is the Democrats endgame. I suspect they messed up leaving the severability clause out in their haste to pass this monstrosity. However, they can still “win” if the Supremes chuck the mandate but let the rest of the law stand.

    The only real way for freedom to win is to elect a supermajority in the Senate, keep the majority in the house and get anyone but Rommey in the WH in 2012.

    We can get into another discussion about the RINO known as Mitt in another thread if needed.

    JK (286dbd)

  16. If insurance companies have to take every customer, regardless of a preexisting condition, without having the healthy to share the risk, there is no way they can turn a profit or stop from losing a lot of money.

    Why is this an issue? Are not auto, life, and fire insurance companies treated the same way?

    Michael Ejercito (64388b)

  17. Judge Frank Hull, the third member of the panel, repeatedly asked the lawyers about the possible effect of the court striking down the mandate, while upholding the rest of the law. She said the government had exaggerated the importance of the mandate. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.

    everyone should remember – the purpose of the mandate is not to compel the 10 million out of 30-40million to become insured – but to prevent a mass exodus from health insurance by all the healthy individuals who are currently insured since there is automatic reinsurability even after they develop health problems.

    joe (93323e)

  18. Why is this an issue? Are not auto, life, and fire insurance companies treated the same way?

    No

    JD (318f81)

  19. Micheal:

    There is certainly a difference. Mandated insurance for autos is usually liability. Life insurance is base on actuarial tables. Fire insurance is based on probability and risk assessment.

    Insurance for pre-existing health conditions is forcing payment for treatment regardless of the health of patient. Insurance can only be profitable if the baseline assumes not will get sick. When the baseline is all are already sick, it’s not insurance, it is mandated welfare.

    So, the question is simple. Are all Americans obligated by the government to pay for the health care of all sick Americans?

    Ag80 (2fffb8)

  20. Sorry I misspelled your name Michael.

    Ag80 (2fffb8)

  21. Katyal argued that healthcare was unique and unlike the purchase of other products, like vegetables in a grocery store.

    “You can walk out of this courtroom and be hit by a bus,” he said, and if an …injured person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care.

    Does this argument make any sense to anyone? If I get run down by a bus, whether I have insurance or not, doesn’t the bus company’s liability insurance foot the bill if it’s their fault?

    I’ve never understood how the “what if you get hit by a bus” argument is somehow an effective way of supporting the individual mandate. Quite the opposite, it highlights just how many ways people are covered by somebody’s insurance.

    Let’s say it’s a Greyhound bus. If one of those runs a red light and puts some uninsured person in the hospital, that’s probably the furthest that individual will ever be from forcing the taxpayers to pay their medical bills.

    Steve (cabe23)

  22. Why is this an issue? Are not auto, life, and fire insurance companies treated the same way?

    Comment by Michael Ejercito — 6/8/2011 @ 6:39 pm

    Are you suggesting that auto insurance has to insure me if I demand it, despite my 223 DUIs and suspended drivers license?

    Or are you saying I can buy car insurance after I learn of a car accident, and have them pay for it?

    There no way I can think of that your claim makes sense.

    Dustin (c16eca)

  23. Why is this an issue? Are not auto, life, and fire insurance companies treated the same way?

    No, they are not, at least by the FEDERAL government. States have different powers and those have included all kinds of economic powers heretofore denied to the feds.

    Kevin M (298030)

  24. Oh, btw, I doubt a state could compel me to buy life insurance.

    Kevin M (298030)

  25. Aaron wrote,

    Now I should caution you that every lawyer has had the experience of leaving the court with signals that positive and still lost.

    I agree, and would share a further observation:

    During the year I clerked on the Fifth Circuit (back when FL, GA & LA were still in it, rather than split off into the Eleventh), I saw lots of oral arguments.

    * Approximately 90% of the lawyers who left the courtroom were, I believe, absolutely convinced that they’d just won their cases.

    * Something around 50% of the lawyers who left, actually had.

    Those are rough approximations: sometimes there are multiple parties per side, sometimes multiple sides, sometimes it’s even hard to figure out whether a given result is or isn’t a win. But you get my drift.

    And I actually tend to be of the Thomasian view that oral argument usually doesn’t much matter. When I clerked, the biggest impact I saw was from lawyers who made ill-chosen concessions in response to a sharp question at oral argument. It’s much more likely, then, that you’ll lose on appeal based on your oral argument performance than that you’ll win one that you otherwise shouldn’t have won through a really good performance at oral argument.

    Here’s my take on Katyal’s snarky remark, FWIW. (I am not impressed.)

    Beldar (a1d653)

  26. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now.

    Nobody tell Rep. Sheila Jackson-Lee

    “The Fifth Amendment speaks specifically to denying someone their life and liberty without due process,” she said in a speech on the House floor moments ago. “That is what H.R. 2 does and I rise in opposition to it. And I rise in opposition because it is important that we preserve lives and we recognize that 40 million-plus are uninsured.

    Scott Jacobs (effddf)

  27. Sorry if I’m repeating what someone else has said better, but re auto insurance:

    (1) That’s a state mandate, not a federal one, and it’s part of traditional state powers in several different respects. There’s no federal or state constitutional right to drive. (Your right to cross state borders can be exercised in other ways.) Going back before the Constitution, states and their governmental units (cities, towns, counties, etc.) typically financed and heavily regulated things like toll-roads and canals, and that extended into paved roads, railroads, etc., as we moved into the automobile age. Except to the extent their powers are limited or preempted by federal law, or by their own state constitutions (which they can amend), state governments are limited to specific enumerated powers the way the U.S. government is supposed to be. So this federalism distinction is a HUGE difference, both between other state mandates on auto insurance or state mandates in, e.g., Romneycare.

    (2) More fundamentally, as I know others have already pointed out, you don’t have to drive. It’s a privilege, not a right, and it’s a privilege of state law, not federal law. And when you voluntarily choose to seek a privilege like driving, you take the strings that come with it: States can require you to be trained; they can require you to be licensed; they can limit and condition your privileges based on your age, your eyesight, the time of day, or the noise your muffler makes or the exhaust gases it emits. And they can and do require that you maintain proof of financial responsibility — not that you buy insurance, although that’s how most people choose to maintain proof of responsibility. But hey, if your state requires $20k and you can put up a bond to establish your corporate surety is good for that much (which will cost you as much or more in surety premiums than your car insurance policy), go for it. Or you can put cash on deposit somewhere, get a letter of credit from your bank, etc.

    Beldar (a1d653)

  28. ACK

    Awful typo, meant for that to read “state governments are NOT limited to specific enumerated powers the way the U.S. government is supposed to be.”

    Beldar (a1d653)

  29. In 16, it appeared Ejercito was replying to the preexisting conditions issue, rather than the mandate (which obviously must accompany the former if we are to avoid collapse).

    Many are practically mandated to buy car insurance, though Beldar’s right there is a major element of choice, as you necessarily have to drive, and many don’t.

    I just don’t understand how Michael’s comparison makes sense considering what he is replying to. I guess I’m being dense about this.

    Dustin (c16eca)

  30. Michael

    > Why is this an issue? Are not auto, life, and fire insurance companies treated the same way?

    what are you talking about?

    I can assure you, you cannot get into an accident and then get insurance coverage, including that accident, after the fact. you have to have the coverage before the accident.

    And no, they don’t have to take you, period. insurance companies decide people are uninsurable all the time.

    Aaron Worthing (73a7ea)

  31. They really do have a ‘Pauline Kael’ level of cluelessness, Beldar,which I don’t think Judge
    Marcus, for one will take kindly to,

    ian cormac (72470d)

  32. Dustin, it’s not just that you don’t have to drive (although that’s important too), it’s that you don’t have to buy car insurance to drive. You just have to maintain proof of financial responsibility to the extent required by your state. There are other ways to do that besides buying insurance; you don’t have to buy anything if you meet the requirements in other ways, e.g., by posting a cash bond (which remains yours and may even continue to draw interest while it’s in someone else’s control).

    Beldar (a1d653)

  33. Lemme ‘splain it this way:

    No state requires you to buy automobile liability insurance.

    Every state requires you to maintain proof of financial responsibility in a specified amount.

    Almost everyone chooses to maintain proof of financial responsibility by buying car insurance. Automobile insurance also comes with valuable benefits like the insurer’s obligation to investigate and defend against claims, but if you wanted to dispense with that, you might get someone to guarantee your credit up to the required limit through a surety bond, and depending on your creditworthiness, that might cost you less than auto liability insurance in the same amount. Or you could pay someone a comparatively nominal fee to be the trustee to administer a cash bond — probably paying the trustee out of interest, which would reduce your investment yield, but still leave you earning money off the deposit.

    TANSTAAFL still applies; any means of maintaining proof of financial responsibility has its costs of some sort, even if it’s just indirect opportunity costs for other investments you could have made with the money or creditworthiness you tie up to maintain the proof.

    But this is all a matter of consumer choice, not state mandate.

    Beldar (a1d653)

  34. Let’s say it’s a Greyhound bus. If one of those runs a red light and puts some uninsured person in the hospital, that’s probably the furthest that individual will ever be from forcing the taxpayers to pay their medical bills

    You’re forgetting a couple of important things there:
    1) Hospitals and doctors are not going to wait around a couple of years while you and Greyhound settle on a figure, or the case goes to trial and judgment against Greyhound. They expect their payment now.
    2) Greyhound may not be liable to pay the full amount, because of the doctrine of contributory negligence (ie, the plaintiff himself was negligent in some way that contributed to the accident, and his share of the fault lowers the award against Greyhound proportionately.) And by the time you get attorney’s fees, fees paid to expert witnesses, deposition costs, etc. deducted, you may have substantially less than the amount needed to cover medical bills.

    And to change the hypo, instead of saying X got hit by a Greyhound bus, say X had a heart attack while walking down the street to the grocery store. No third party there.

    And those hospital charges can be enormous. My stepmother died a couple of months ago, after spending approximately six months in the hospital in a vegetative state as the result of an aneurysm. The hospital bill (which does not include anything from the first month, during which she was being taken care of at another hospital) was $13 million–more than $2 million a month. (Insurance payments, Medicare writedowns of various charges, etc. meant my father ended up paying $1300 overall–but without insurance he’d be arguing with them over paying money he has no hope of ever having.

    kishnevi (f8d61b)

  35. . You just have to maintain proof of financial responsibility to the extent required by your state.

    I actually almost made that point, but I don’t really want the government to offer a similar option for health care. It’s just a different kind of issue.

    If I want to live and breath the air, I shouldn’t be forced to show financial responsibility for health. If I want to put a machine on the interstate, that’s a lot different, which you certainly explained.

    Though I appreciate that the federalism issue is also a big point (I wouldn’t accept any government at any level mandating this on me, though I admit I would find it acceptable if other states democratically decided they wanted to be oppressive in that fashion).

    Dustin (c16eca)

  36. The much harder question is whether a state could require you to maintain proof of financial responsibility to pay your medical bills. Health care isn’t so traditional a part of state regulation as common transportation; to the contrary, until well into the 20th Century responsibility for medical bills was almost entirely a private matter in which the state had very limited involvement (typically through light regulation of solvency of insurers rather than anything more related to a particular patient).

    But a mandate to maintain proof of financial responsibility still doesn’t require you to buy anything.

    Beldar (a1d653)

  37. kish (#34), there’s also the fact that Greyhound went through a Chapter 11 in the 1990s.

    I was one of its lawyers, in fact, litigating in bankruptcy court some critical labor law issues pertaining to the strike that precipitated the bankruptcy — even though I’m neither a labor lawyer nor a bankruptcy lawyer.

    Lots of people lost money in that bankruptcy, including a few tort claimants; but IIRC Greyhound’s existing liability insurance ended up taking care of most claimants pursuant to a blanket partial lift-stay order.

    Beldar (a1d653)

  38. Dustin, the federalism argument is one that’s close to Gov. Romney’s heart right now. But given that maybe 2% of the American public knows what “federalism” is, that’s not much help to him.

    It’s still a pretty good argument in federal court, though.

    The fact is that both state and federal governments can legislate a whole lot of things that are colossally unwise and unfair, but still constitutional. For the federal government, though, that’s supposed to be less so precisely because it (unlike the states) is a government of enumerated powers.

    This stuff was meat and bread to the Founding Fathers, the kind of stuff they had bar brawls to establish and wrote the Bill of Rights to maintain.

    Beldar (a1d653)

  39. Are you suggesting that auto insurance has to insure me if I demand it, despite my 223 DUIs and suspended drivers license?

    Or are you saying I can buy car insurance after I learn of a car accident, and have them pay for it?

    There no way I can think of that your claim makes sense.

    Well, surely there must be precedent for insurance companies being required to cover pre-existing conditions.

    Michael Ejercito (64388b)

  40. The hospital bill (which does not include anything from the first month, during which she was being taken care of at another hospital) was $13 million–more than $2 million a month.

    That is unconscionable. Maybe the problem is not with the insurance companies, but with the greed of doctors and hospitals.

    Michael Ejercito (64388b)

  41. The fact is that both state and federal governments can legislate a whole lot of things that are colossally unwise and unfair, but still constitutional. For the federal government, though, that’s supposed to be less so precisely because it (unlike the states) is a government of enumerated powers.

    Right. This has a lot of appeal to me. I would like to see states go their own ways on issues we don’t really have to be one nation on. We should be one nation for defense, citizenship, some other issues, but let the states have more control over their destiny.

    The word that describes this concept is “democratic”. Which is frustrating, because folks in blue states who don’t want folks in red states to have control over political questions call themselves “democrats”.

    If MA wants to legalize gay marriage, and Texas wants to make English the official language, why not let them? Culturally, we can have some real diversity, and I think this would lead to a much more united United States, as there is a lot less tension.

    Anyway, one reason the federalism argument doesn’t help Romney as much as one might expect is because a lot of people just plain think a mandate was a bad decision for a state to make. Much like reducing the speed limit in Arkansas to 15 MPH, and then defending that on federalism grounds. I agree with him in principle, and still in practice am not pleased with his choices.

    Dustin (c16eca)

  42. Well, surely there must be precedent for insurance companies being required to cover pre-existing conditions.

    Comment by Michael Ejercito — 6/8/2011 @ 9:47 pm

    It’s not life insurance. It’s not car insurance. I doubt an arsonist can get fire insurance.

    I honestly think we’re talking past eachother, and I am just not seeing what you’re trying to say.

    Dustin (c16eca)

  43. r.e. #34. Kishnevi, I’m not forgetting anything. What I’m objecting to is Katyal’s assertion that if some uninsured person gets hit by a bus, that there’s some natural law that kicks in requiring the bill be covered by the taxpayers.

    Ain’t so.

    Steve (cabe23)

  44. The hospital bill (which does not include anything from the first month, during which she was being taken care of at another hospital) was $13 million–more than $2 million a month.

    That is unconscionable. Maybe the problem is not with the insurance companies, but with the greed of doctors and hospitals.

    I will defer to the medical billing personnel, though my understanding is that there is a posted rate ( in this case $13m) and the actual rate (significantly less). Most, if not all the insurance companies negotiate substantial discounts off of the posted rates. Much of the overcharges the uninsured are billed for emergency room care is not to cover the uncompensated care of the freeloaders, but the cover the cram downs they get from the negotiated rates of the insurance companies.

    joe (93323e)

  45. I honestly think we’re talking past eachother, and I am just not seeing what you’re trying to say

    My point is that health insurance is being treated differently by the government than other forms of insurance.

    Michael Ejercito (64388b)

  46. that there’s some natural law that kicks in requiring the bill be covered by the taxpayers.

    It’s called your local public hospital’s ER.
    I was tangentially involved in helping administer the local public hospital district for a while, so I know how they handled “charity cases”. Whatever they couldn’t collect from the patient/patient’s family, was written off as a bad debt, which meant in practical terms it came out of the property taxes that help support the public hospital. In other words, your tax dollars are covering whatever that patient was unable to pay. In private hospitals, to the best of my knowledge, general revenues make up for what’s not paid–in other words, the money received from paying patients.

    Comment by joe — 6/9/2011 @ 4:46 am

    To a point you are correct. But when an insured patient is involved, the hospital will attempt to collect the full amount of those charges, and the only limit is how much the patient or (I suppose) his lawyer can negotiate them down. And a lot of those high charges are in fact compensating for charity cases and indigent patients, especially in the case of private hospitals.

    In this particular case, I know how much my father had to pay, and he told me the final total of the official bill, but he wasn’t sure how much was actually written off as insurance writeoffs and adjustments, and frankly at the time he was not in a state that allowed me to question him for details. So I don’t know how much of that $13 million the hospital actually received.

    Comment by Michael Ejercito — 6/8/2011 @ 9:50 pm
    $13 million was totally reasonable. Six months of dialysis once or twice a week, being on an oxygen machine, attempts at physical therapy and similar matters before they realized she was within days of dying, expensive anti-cancer drugs (before she went into the hospital, she was taking one that cost a thousand dollars a month)–the full panoply of medical technology. The claim that medical care in the last few weeks or months of life forms an enormous percentage of overall medical care and costs was, in this case at least, completely true.

    kishnevi (b704db)


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