ATLANTA — 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 11th U.S. Circuit Court of Appeals. 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."
Hull questioned the necessity of the mandate if millions of the uninsured will be taken care of through pieces of the legislation that expand Medicaid, allow children up to age 26 to remain on their parents' insurance and require insurance companies to cover pre-existing conditions.
Katyal said the provision is essential to generate revenue for insurance companies who under the new law will bear additional costs for new requirements.
Chief Judge Joel Dubina, appointed to the court by President George H.W. Bush in 1990, said he read every Supreme Court case on the commerce clause to prepare for the day.
"There's no case out there just like this," he said. "If we uphold the individual mandate, are there any limits on congressional power?"
Dubina's daughter, U.S. Rep. Martha Dubina Roby, is an outspoken opponent of the health care overhaul. An Alabama Republican elected in November, she voted to repeal the health care law, saying it was "less about providing health care for all citizens, and more about expanding federal government."
Dubina asked Obama's attorney to elaborate on why he calls the penalty for not buying health insurance a tax.
"It looks like a tax. It functions like a tax," Katyal said, noting taxpayers will be questioned about their health insurance status on IRS forms. "It will lower the deficit."
That prompted Marcus, first nominated by President Ronald Reagan to serve on the Florida bench after working as Miami's lead federal prosecutor, to question the primary purpose of the law.
"Is it to raise revenue?" he asked.
Katyal dodged the question.
Hull later wondered how collecting the fee, which if unpaid has no interest, liens or criminal penalties associated with it, would be any easier than collecting unpaid medical bills.
She also questioned Katyal on what will stop Congress from requiring people to buy certain cars or types of energy if the courts uphold the health care law.
People can't get solar panels or cars with no money, Katyal answered. Health care, they can, he said.
It's not clear when the court will issue a ruling.
More than 200 observers filled the wood-paneled Atlanta courtroom and part of an overflow room, with people lining up outside the building before 7 a.m. to get a seat for the 9:30 a.m. hearing that lasted nearly three hours.
Watching in the front rows was Florida Attorney General Pam Bondi, as well as attorneys general for the states of Texas, Georgia, South Carolina and Nebraska. Former Florida Attorney General Bill McCollum also sat with Bondi. He filed the suit against the federal government hours after Obama signed the Patient Protection and Affordable Care Act into law in March 2010. When McCollum left office in January, Bondi took over the case.
"I'm just an observer," McCollum said before he entered the courthouse. "I just want to listen to the banter that goes on. This is an important warmup before the case goes to the Supreme Court."
The states are paying Clement — a former U.S. solicitor general — $250,000 to see the case through the country's highest court.
With 21 or the 26 states splitting the costs, Florida's share will be between $20,000 and $25,000, said Bondi spokeswoman Jennifer Meale.
After the hearing, Bondi said she felt good about the proceeding.
"The judges asked some very important, very pointed questions," she said.
Janet Zink can be reached at email@example.com or (850) 224-7263.