Business

Court Grills Government on Obamacare 'Mandate'

Business coalition encouraged by tough questions about constitutionality of law
By: Kenric Ward | Posted: June 8, 2011 2:30 PM
Barack Obama November 16 2009 400x180

President Barack Obama

A business plaintiff in the legal challenge to Obamacare said opponents had "a good day" at the 11th Circuit Court of Appeals on Wednesday.

Presiding over a packed courtroom in Atlanta, a three-judge panel heard oral arguments from both sides over the constitutionality of the Affordable Care Act.

A coalition of 26 states, led by Florida and the National Federation of Independent Business, argued that the ACA's mandate requiring the purchase of health insurance was an unprecedented overreach of federal power.

Attorneys for the U.S. Justice Department countered that the program is constitutional, but they ran into skeptical inquiries from the panel.

"The bottom line is that the government couldn't say where the individual mandate would end. They couldn't answer the 'broccoli question' of what products we would be required to buy in the future," said Karen Harned, executive director of NFIB Small Business Legal Center.

"The judges went after them on that."

Reporters present in the courtroom echoed Harned's assessment.

"[The] judges did not give a warm embrace to the individual mandate provision of President Barack Obama's health-care law," reported the Atlanta Journal-Constitution.

Also encouraging for opponents was the judges' detailed line of questioning about "severability" in the law.

"If the individual mandate is constitutional, that wouldn't be an issue," Harned said.

Still, after tough questioning of both sides, no one was about to declare victory. The 11th Circuit is expected to provide the most crucial opinion yet stemming from lawsuits triggered by the ACA.

In January, U.S. District Judge Roger Vinson, presiding in Pensacola, ruled that Obamacare’s individual mandate requiring citizens to purchase health insurance exceeded the federal government’s constitutional authority.

The case brought by 26 states contends that nothing in the U.S. Constitution permits the federal government to force individuals to buy any kind of product.

Several other challenges to the health-care law are winding their way through courts in other states.

Lawyers on both sides believe the matter ultimately will be decided by the U.S. Supreme Court -- possibly after the 2012 election -- but the appellate panel's ruling in Atlanta is viewed as a crucial test. Observers expect that the panel could take several months to issue its decision.

Thus far, lower-court rulings on the ACA have gone along party lines, with Republican-nominated judges siding with the law's opponents and Democratic judges upholding the law's constitutionality.

The three randomly selected judges that constitute the 11th Circuit Court panel are a partisan mixture, with two appointed by Bill Clinton and one by George H.W. Bush. But one of the Clinton appointees, Stanley Marcus, was initially named to the federal bench by Ronald Reagan. Chief Judge Joel Dubina, appointed by Bush, has a daughter who, as a freshman congresswoman, voted to repeal the ACA.

At the close of the arguments, which lasted about 2 1/2 hours, Dubina called the challenge "a very difficult case" and one that could affect most Americans.

Adam Hasner, a Republican candidate for U.S. Senate, praised Florida Attorney General Pam Bondi for pursuing the legal fight and said there's an economic battle under way as well.

In a statement released before Wednesday's hearing, Hasner stated:

"Implementation of Obamacare has played a major role in prolonging our country's economic challenges. Earlier this year, the head of the Congressional Budget Office testified before Congress that implementation of Obamacare would cost 800,000 jobs.

"The myriad regulations, taxes and rules contained in Obamacare have only caused more worry and hesitation among the small-business men and women and job creators I've met with during the past three months," Hasner said.

Also Wednesday, a study by McKinsey & Co. reported that 30 percent of employers are likely to stop offering workers health insurance after Obamacare provisions take effect in 2014.

A growing number of employers are seeking waivers from an early provision in the law that requires them to enrich their benefits this year. Several large state and national unions that financially support the Democratic Party have already obtained such waivers.

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Contact Kenric Ward at kward@sunshinestatenews.com or (772) 801-5341.


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