Proponents of ObamaCare got a shock Wednesday when a three-judge panel of the 11th U.S. Circuit Court of Appeals seemed deeply skeptical of the legislation's most significant component -- a federal mandate forcing everyone to purchase health insurance.
The Los Angeles Times noted:
"If the Obama administration had any doubt that its signature health care law faces a severe challenge in court, it was erased soon after Chief Judge Joel Dubina opened the proceedings here.
" 'I can't find any case like this,' Dubina said. 'If we uphold this, are there any limits on the power of the federal government?' ... Judge Stanley Marcus chimed in: 'I can't find any case' in the past, he said, where the courts upheld 'telling a private person they are compelled to purchase a product in the open market.' "
The panel "seemed prepared to declare at least part of last year's law unconstitutional," the Times reported.
The case at hand involves 26 state attorneys general -- all Republicans -- who jointly challenged the law.
The courts should uphold the law under Congress' broad power to regulate commerce between the states, U.S. Solicitor General Neal Katyal argued. But former Bush administration Solicitor General Paul Clement, representing the plaintiff states, dismissed that argument as absurd. Someone "sitting in their living room and having decided not to buy health insurance isn't engaged in commerce."
Can the government also require all Americans who can afford it to pay for their future grocery needs in advance?
"Congress could mandate the 'economic decision' to purchase all manner of healthy products, from broccoli to gym memberships," Gregory Katsas warned the court in his brief for the National Federation of Independent Businesses.
If any of the appeals courts strikes down the law, the case would almost certainly land at the U.S. Supreme Court.
One thing is for sure: American employers complain that uncertainty over the ObamaCare mandates make them reluctant to hire or expand, contributing to the ongoing economic stagnation.
And that uncertainty is going to drag on a while longer.