"[T]his case comes down somewhat to whether or not the decision -- because you are making a decision, and let me put aside activity and inactivity. Don't call my economic decisions I'm making inactivity. I consider it inactivity. The activity/inactivity [distinction] doesn't help me personally," she said.
This, however, is central the plaintiffs' case. They have argued -- as have other legal challengers the new law -- that the government overstepped its Commerce Clause powers by coercing people to enter a market they have chosen not to enter. Indeed, Clement acknowledges that Congress would have the power to compel the purchase of insurance if and when a patient attempted to seek health care without the means to pay for it, but not before or after.
For Hull, that means the issue under contention comes down not to the legal tool Congress used to expand the health insurance risk pool, but rather to a matter of timing.
"The inactivity point is losing salience," said former Solicitor General Walter Dellinger, who watched the proceedings.
The panel -- comprised of two Clinton appointees and one George H.W. Bush appointee -- will decide whether to uphold a ruling by Florida district court judge Roger Vinson, who found "ObamaCare's" individual insurance mandate unconstitutional. Vinson threw out the entire health care law, which he said could not be separated from the mandate. Much as in the Supreme court, a majority of judges (in this instance, two) can decide the case in the event of a split decision.