"I can't find any case like this," said Chief Judge Joel Dubina of the U.S. Court of Appeals for the 11th Circuit. "If we uphold this, are there any limits" on the power of the federal government?
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," he said. ". . . Is there anything that suggests Congress can do this?"
That question is at the heart of the constitutional challenge to the health-care law, an argument that many legal commentators initially waved aside but that has now sharply divided the courts. So far, three federal district judges have upheld the law, and two have ruled it unconstitutional. Three cases have reached appeals courts, with a fourth appellate panel scheduled to hold a hearing in September.
The current case, State of Florida et al. v. U.S. Department of Health and Human Services, has gathered the most attention, because it involves attorneys general, all Republicans, from 26 states - including Pennsylvania - who jointly challenged the law. They won in a lower court Jan. 31, when U.S. District Judge Roger Vinson of Pensacola, Fla., ruled the entire law invalid.
The 11th Circuit is considered among the most conservative of the federal appellate courts. If any of those courts were to strike down the law, the case almost certainly would land at the Supreme Court, perhaps during the election year. The 11th Circuit has been seen by legal experts as one of the more likely to rule against the administration.
The questions from the bench quickly confirmed that advance billing as acting U.S. Solicitor General Neal K. Katyal faced off against Paul Clement, solicitor general in the Bush administration.
Katyal argued that health care was unique and unlike the purchase of other products, such as vegetables in a grocery store. "You can walk out of this courtroom and be hit by a bus," he said, and if an ill or injured person has no insurance, a hospital and the taxpayers must pay the costs of the person's emergency care.
Katyal argued that Congress could reasonably decide that since all Americans are likely to need medical care at some time in their lives, everyone who can afford it should pay part of the cost. He also said the courts should uphold the law under Congress' broad power to regulate commerce.
Congress could clearly require that a person who shows up at a hospital without insurance buy it on the spot, Katyal said, and requiring the purchase in advance should not be the decisive difference.
But Clement said, "In 220 years, Congress never saw fit to use this power, to compel a person to engage in commerce."
Judge Frank Hull, the third member of the appeals panel, repeatedly asked the lawyers about the possible effect of striking down the mandate while upholding the rest of the law. Hull said the government had exaggerated the mandate's importance because the law's other provisions would mean that most of the 50 million people who now lack insurance would be covered once the law takes effect.
Usually, when passing a complex law, Congress includes a provision known as a severability clause that says that if one part of the law is struck down, the rest can stand. The House included such a provision in its health-care bill, but it was not included in the Senate version. And in the last-minute scramble, the House adopted the Senate's version.
Both sides agreed that the court faces an all-or-nothing decision.
Katyal called the individual mandate the cornerstone of the law's aim to regulate and reform the insurance market. The new law requires insurers to take patients with "preexisting conditions." That rule could not work if people could wait to buy insurance until they have a heart attack or are diagnosed with cancer, he said.
Clement also said the judges should strike down the entire law. "You can't separate out the mandate. We take the position the whole thing falls," Clement said.
The appeals court also considered a challenge by the states to the requirement that they pay more in the future for health care for low-income Americans under Medicaid. That part of the new law amounts to an unconstitutional burden foisted on them by Congress, Clement argued.
So far, judicial rulings on the health law have largely been along partisan lines. Dubina, from Alabama, was appointed to the bench by President Ronald Reagan and elevated to the appeals court by President George H.W. Bush. His daughter, Rep. Martha Dubina Roby, is a conservative Republican who ran for office on a pledge to "repeal" the health-care law.
Hull, from Georgia, was appointed by President Bill Clinton. The third panel member, Marcus, from Florida, was appointed by Reagan as a district judge; Clinton appointed him to the appeals court.