Opponents: Health care law is 'unconstitutional'

Attorneys for 26 states, led by Florida, argued that the federal healthcare law provision that forces people to buy health insurance or pay a penalty is unconstitutional. The Obama administration disagrees.

Florida’s lawsuit challenging the constitutionality of the federal health care law moved to a federal appeals court Wednesday, where a trio of judges grilled President Barack Obama’s top lawyer and repeatedly questioned whether Congress can force people to buy health insurance.

Florida, 25 other states and the National Federation of Independent Business say the federal health care law’s “individual mandate” violates the commerce clause of the Constitution by requiring people to buy health insurance or pay a penalty.

Obama’s top lawyer, acting solicitor general Neal Katyal, sees it differently.

“People are seeking this good already in untold numbers. The good of health care,” Katyal said during nearly three hours of arguments before the U.S. Court of Appeals for the 11th Circuit. At issue is how that “good” is paid for, he argued.

“It is purely financing,” Katyal said. “It’s about failure to pay. Not about failure to buy.”

The 50 million people who don’t have insurance in this country, he said, end up in emergency rooms, unable to pay for their care, and that drives the cost up for everybody else.

Attorney Paul Clement, representing the states, conceded that government can compel people to buy insurance, but not until they need medical care.

Before that, “they’re not engaged in commerce,” Clement argued. “They’re sitting in their living rooms.”

Judges repeatedly questioned attorneys about Congressional powers and whether the mandate to purchase insurance can be “severed” from the entire federal law and considered on its own.

The question is important because a Florida federal judge in January ruled the individual mandate is unconstitutional and therefore the entire federal law is invalid. The federal government appealed the ruling. The U.S. Supreme Court is expected to ultimately decide the case.

Judges Stanley Marcus and Frank Hull, both appointed to the court by President Bill Clinton in 1997, wanted to know exactly which pieces of the new law would be affected if the individual mandate was deemed unconstitutional but the rest of the law was not.

“I’m not saying that’s where we’re going,” said Hull, a former county judge in Atlanta. “I’m trying to understand the act.”

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