In the most important appeal of the Obamacare constitutional saga, today was the best day yet for individual freedom. The government’s lawyer, Neal Katyal, spent most of the hearing on the ropes, with the judicial panel extremely cautious not to extend federal power beyond its present outer limits of regulating economic activity that has a substantial aggregate effect on interstate commerce. – Cato

Log this under the bad memory file. Someone should have figured out a way that ACA wouldn’t have been so easily challenged. But that’s spilled, sour milk, though it’s the reason for the graphic, as we still need health care reform.

Not everyone agrees with the quote above, though most of the things I have read point to the fact that acting Solicitor General Neal K. Katyal for the Obama administration got grilled on high.

Cato’s Ilya Shapiro certainly was happy:

Countless times, Judges Dubina and Marcus demanded that the government articulate constitutional limiting principles to the power it asserted. And countless times they pointed out that never in history has Congress tried to compel people to engage in commerce as a means of regulating commerce. Even Judge Hull, reputed to be the most liberal member of the panel, conducted a withering cross-examination to establish that the individual mandate didn’t help that many people get affordable care, that the majority of people currently without coverage would be exempt from the requirement (presumably due to their income level).

In short, while we should never read too much into an oral argument, I’m more optimistic about this case now than any other.

But as Jonathan Cohn writes in a good rundown, if you read other reviews on what happened it’s a bit more mixed.

From Ian Millhiser:

The plaintiffs in this case make the most common argument conservatives levy against the ACA ““ its provision requiring most Americans to either carry health insurance or pay slightly more income taxes violates the Constitution because Congress cannot “regulate inactivity” ““ only the states have this power ““ and therefore people who don’t buy insurance are somehow off limits.

The judges, however, expressed extreme skepticism at this argument. At one point, Judge Frank Hull, a conservative Clinton appointee nominated as part of a compromise with the GOP-controlled Senate, announced outright that “this whole inactivity business just doesn’t get me.” Judge Stanley Marcus, a similar compromise Clinton appointee, said on several occasions that the plaintiffs’ entire states’ rights theory didn’t make sense.

Segue to , acting Solicitor General Neal K. Katyal for the Obama administration:

Mr. Katyal said that the insurance mandate clearly had an economic rationale because governments, hospitals and the privately insured end up shouldering costs for uninsured patients who cannot pay. That rationale, he said, satisfies the test set by the Supreme Court in a string of prior decisions: that the Commerce Clause permits Congress to regulate activities that have a substantial effect on interstate commerce.

What the Supreme Court has never considered is whether a choice to not buy a product can be considered an “activity” that can be regulated, as the government asserts.

Nobody knows how this one is going to end. The next hearing is in September in D.C.