BY GREG BLUESTEIN
Associated Press
Thursday, June 9, 2011

ATLANTA — Judges on a federal appeals court panel on Wednesday repeatedly raised questions about President Barack Obama’s health care overhaul, expressing unease with the requirement that virtually all Americans carry health insurance or face penalties.

All three judges on the 11th Circuit Court of Appeals panel questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.

The Atlanta panel did not immediately rule on the lawsuit brought by 26 states, a coalition of small businesses and private individuals who urged the three to side with a federal judge in Florida who struck down the law.

But the pointed questions about the so-called individual mandate during almost three hours of oral arguments suggests the appeals court panel is considering whether to rule against at least part of the federal law to expand health care coverage to tens of millions of Americans.

Federal appeals courts in Cincinnati and Richmond have heard similar legal constitutional challenges to the law within the last month, and lawyers on both sides agree the case is headed for the U.S. Supreme Court.

At issue Wednesday was a ruling by U.S. District Judge Roger Vinson of Florida to invalidate the entire law, from the Medicare expansion to a change that allows adult children up to age 26 to remain on their parents’ insurance. The government contends that the law falls within its powers to regulate interstate commerce.

Chief Judge Joel Dubina, who was tapped by Republican President George H.W. Bush, struck early by asking the government’s attorney “if we uphold the individual mandate in this case, are there any limits on Congressional power?” Circuit Judges Frank Hull and Stanley Marcus, who were tapped by Democratic President Bill Clinton, echoed his concerns later in the hearing.

Acting U.S. Solicitor Neal Katyal sought to ease their concerns by saying the legislative branch can only exercise its powers to regulate commerce if it will have a substantial effect on the economy and solve a national, not local, problem. Health care coverage, he said, is unique because of the billions of dollars shifted in the economy when Americans without coverage seek medical care.

“That’s what stops the slippery slope,” he said.

Paul Clement, a former U.S. solicitor representing the states, countered that the federal government should not have the power to compel residents to buy to engage in commercial transactions. “This is the case that crosses the line,” he said.