7th Circuit Skewers Case Against Obamacare

     CHICAGO (CN) – After a morning spent skewering a hapless anti-Obamacare lawyer, the 7th Circuit appears poised to throw out a politically conservative medical association’s challenge to the law to avoid a “breathtaking expansion of jurisdiction.”
     Several courts have already upheld the validity of the Patient Protection and Affordable Care Act, including the 9th Circuit, which last month ruled the law did not violate an Arizona man’s right to “medical autonomy,” and the D.C. Circuit, which dismissed an artist’s claim that the Act unconstitutionally forces him to buy health insurance against his will.
     This latest challenge to the law was filed by the Association of American Physicians and Surgeons, a conservative nonprofit, which sued the IRS to block the law’s enforcement and “fight the government takeover of medicine.”
     The IRS has not yet implemented the employer mandate, which requires certain businesses to cover employees or face penalties. The association argues that applying the individual mandate without the employer mandate “shifts the burden of premiums onto individuals and eliminates from the market many cash-paying patients who would seek medical care from [its] members.”
     U.S. District Judge William Griesbach threw out the case, noting that even if association members have “cash practices” that do not accept health insurance payments — and thus would be prejudiced by the Act — this is incidental to the tax regime.
     “Plaintiffs typically lack standing to litigate the tax obligations of others,” he wrote.
     On Tuesday, Judge Richard Posner drove this logic home.
     “You’re suggesting a breathtaking expansion of jurisdiction, aren’t you?” he asked. “You’re suggesting that anyone with a potential economic injury from a law can bring a suit. Where would you stop?”
     “The stopping point is if someone is not being regulated by a particular statute,” plaintiff’s attorney Andrew Schlafly replied. “This is a regulation of the medical field, not some remote tax.”
     He then argued that people forced to buy insurance will never seek out cash practices in order to avoid paying for healthcare twice.
     This did not satisfy Posner. “That’s like saying people who get food stamps don’t pay as much for groceries.”
     “We don’t try to trace through all levels of the economy,” Judge Frank Easterbook added.
     Schlafly tried again: “In a concurring opinion by Justice Potter Stewart …”
     “Concurring opinions and $2.50 will get you a cup of coffee at Starbucks,” Easterbook laughed. “I’m asking if you know of the Supreme Court ever allowing someone to sue for someone else’s tax!”
     As Schlafly floundered, Posner seemed skeptical: “The Act has had substantial economic consequences. Many people are better off, many are worse off. There are millions affected by this law. How do you have standing to sue? Is your proposition that anyone adversely affected has standing to sue?”
     Schlafly began to cite another case, but Posner cut him off: “Yes or no?”
     “Depending on the issue …”
     “No!” Posner shouted. “It doesn’t depend on the issue. It depends whether they’re hurt.”
     The yellow light indicating that Schlafly had gone into rebuttal time switched on, and the lawyer appeared happy to be off the hook. Unfortunately for him, government attorney Katherine Twomey simply strolled to the podium and said one sentence asking the judges to throw out the case for lack of standing.
     Seconds later, the inquisition resumed.
     “The bigger point is that we don’t view it as a tax case since other constitutional provisions apply,” Schlafly began.
     Posner chuckled softly. “But your facts have only to do with the merits, not with standing. Can we have poor people suing the government because the income tax system isn’t progressive enough? Suppose some poor people said it’s an equal protection violation, and their rich compatriots are getting away with murder.”
     Schlafly started to turn to precedent again.
     “Yes or no?”
     “I …”
     “You answer my question!” Posner thundered. “Yes or no?”
     “I don’t think that is the logic …”
     “Yes or no? Yes or no?”
     Then Schlafly backtracked again. “If there’s a regulatory tax being applied in a way to harm the poor people, they would have standing,” he said to the panel.
     “With all due respect …” Schlafly began.
     “When you say that, what you’re really saying is ‘if you weren’t a judge I’d call you an idiot.’ If you want to be respectful, just say ‘with respect,'” Easterbrook chimed in, to a laughing courtroom.

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