Judges "aren't real keen" on Obamacare

Robert Alt is a Senior Legal Fellow for the Heritage Foundation and the Deputy Director of the Center for Legal and Judicial Studies. Alt gave us his expert opinion on recent developments surrounding Obamacare.


The 11th Circuit Court of Appeals heard oral arguments on Obamacare, and the results surprised some. Why is that?

These judges aren't real keen on the idea.

The panel is sort of a mixed panel. You had one George W. Bush appointee and two Clinton appointees.

Many people thought it would be an easy win for the justice department.

But most observers thought the justice department was getting a lot of the tough questions.

What are the main issues at play here?

The government really still hasn't got a good answer to, "If the government can require you to purchase insurance on the open market, what can't they do?"

The only answer they have so far is, "The insurance market is special."

The advocates on the other side have shown that that's just not true.

The big question people have asked before is the broccoli. Can the government make you eat broccoli?

One of the things that really came through yet again on this court is the sense that government has never tried to do this before.

Is it unprecedented that policy is passed by congress, signed into law, then 26 states oppose it?

I've tried to find a situation like this, but I can't find one.

I don't recall at any point in recent memory or even in historical records that the majority of the states have marched into court to oppose a federal law.

This isn't just a couple crank attorney generals; this is half the states.

Any court that looks at this has said it's far beyond anything they've seen before.

Do you think the fact that 26 states are opposed to the law impacts the judges?

Justice is, of course, supposed to be blind.

But obviously if the government is on one side, the court may give certain weight to their arguments. But when you have more than half the states on the other side, that evens the sides out.

I think this is the case that the Supreme Court wants to hear.

If it is stopped here, that won't invalidate Obamacare?

There's no way that the government wouldn't appeal in that case.

There are often times you almost make wagers to see whether or not the Supreme Court will or won't take. This is an easy call. The Supreme court will take it.

When will we get a decision and what could happen?

You'll probably get a decision around late summer.

You're looking at three options.

One. The court upholds Obamacare as a whole.

Two. The court strikes down the individual mandate.

Or, they could uphold Vincent's decision in full and strike down the entire statute.

I think the right decision is the one Vincent made.

The question is, "Would Congress have passed the bill is the individual mandate wasn't there?"