The Vanishingly Fine Line in the ObamaCare Litigation

The Eleventh Circuit breaks with most of its sister courts in not posting audio of argument online. So we must rely on the New York Times’ coverage to evaluate yesterday’s argument in State of Florida v. U.S. Dep’t of Health & Human Services, or, the Republican Party’s ongoing quest to invalidate a health care law that they practically wrote, because of socialism, or something.

Per the Times, the judges chose to focus on the question of when the government could require customers to opt-in to commerce, with this result:

It would be permissible, Mr. Clement [counsel for the states] acknowledged under questioning, for Congress to require insurance or other payment by those who are being treated in an emergency room, because they would already be in the stream of commerce. But he said it was a different matter to require them to pay prospectively for future care. [. . .]

But Mr. Katyal [counsel for the administration] urged the judges to see the law not as a mandate to buy an insurance policy, but as a regulation of the means of payment for care that individuals would inevitably consume. Americans would not be conscripted into the market, Mr. Katyal suggested, because the uniquely unpredictable demand for health care would have already placed them there.

“It’s all about financing,” Mr. Katyal asserted. “It’s about regulating whether people are paying cash or credit.”

With this formulation, I don’t see how we lose. Mr. Clement has conceded that life events may — because of the legal duties implied by their occurrence — bring someone inexorably into the stream of commerce, without any volitional act on the person’s part. But that concession gives away half of his argument, that regulable “commerce” requires an affirmative action. It also acknowledges the free rider problem, while rendering it unsolvable. The government can — but won’t — require insurance at the door of the emergency room. Only ex ante regulation can fulfill that need, and the individual mandate seems narrowly tailored to accomplish it. Mr. Clement would know better than me, but I expect that question was a trap, and he fell right into it.

Separately, it’s very disappointing to see a court not give free, easy access to recordings of oral argument, especially in this day and age. As a matter of good appellate practice, attorneys need to be able to revisit their performance to learn, and to gauge the necessity of post-argument filings (under Federal Rule of Appellate Procedure 28, or otherwise). Get with the times, guys.

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