June 1, 2011 4:19PM

Plaintiffs Should Be Cautiously Optimistic about Latest Obamacare Appeal

CINCINNATI — Now for something completely different, and not just because the spirited Sixth Circuit judges were much more skeptical of the government’s position than the Fourth Circuit was last month. Unlike the panel in Richmond — Virginia Attorney General Ken Cuccinelli probably started outlining his cert petition as soon as court adjourned — here there will be at least one vote to strike down the individual mandate, and maybe even all three. And this panel should produce one or more opinions in which there will be much for the Supreme Court to grapple with.

The appellate argument didn’t even begin until after a skirmish over standing provoked by the motion to dismiss the government filed last week. That mini‐​argument — what Judge Martin likened to his time in Jefferson County (KY) circuit court — will likely not prove decisive. Nor will the Anti‐​Injunction Act, the tax statute on which the court requested supplemental briefing but which the government conceded didn’t apply.

Not surprisingly, this case, brought by the Thomas More Legal Center, will almost certainly be decided on the issue of whether the federal government can compel people to engage in commerce — “regulate inactivity.” The government’s theory that “health care is unique” came under harsh attack from Judges Graham and Sutton because it didn’t seem to offer a constitutional (as opposed to factual) limiting principle for federal power. Judge Martin was more circumspect, but he’s considered among the most liberal circuit judges in the country, so all things being equal would probably try to uphold the law (or find a way to decide the case on procedural grounds so as to avoid losing on the merits). Judge Sutton — one of the more conservative jurists nationwide — was also scrupulously neutral, picking at weaknesses in both sides’ presentation and appearing open to a narrow technical decision.

All in all, it was a fascinating day in court that proved again that no matter how much one studies the Obamacare challenges, there’s always something new to learn. Be sure to read Cato’s amicus brief in this case for more background.