Appellate Court Hears Defense of Health Law

 

The 14 members of the United States Court of Appeals for the Fourth Circuit, the first appellate court to review the law, are evenly divided as appointees of Democratic and Republican presidents. That puts the odds of drawing three Democratic appointees in the computerized lottery at roughly 10 to 1. Lawyers do not learn the makeup of the panel until the day of the hearing.

The party of the appointing president is not necessarily predictive of a federal judge’s leanings. But in five decisions in lower courts, three Democratic-appointed judges have upheld the Affordable Care Act while two Republican-appointed judges have ruled that its central provision — the requirement that most Americans obtain health insurance — is unconstitutional.

At Tuesday’s hearing in Richmond, the three Fourth Circuit judges — Diana Gribbon Motz, who was appointed by President Bill Clinton, and the two Obama appointees, Andre M. Davis and James A. Wynn Jr. — challenged both sides with pointed questioning. The hearing lasted more than two hours.

As in the lower courts, the judges focused on the novel question of how to define the choice not to buy health insurance: as commercial activity that the Supreme Court has ruled can be regulated, or as inactivity that is beyond Congress’s reach.

They also devoted considerable time to discussing whether Virginia’s attorney general had legal standing to challenge the insurance mandate, because it would impose a requirement on individuals but not on states.

Virginia stakes its right to sue on its enactment of a state law aimed at exempting residents from the insurance requirement, thereby creating a conflict with federal law.

“If you adopted this theory of standing,” argued Neal K. Katyal, the acting United States solicitor general, “you would allow, for example, a state that was opposed to the war in Afghanistan to say our citizens should be exempt and file a lawsuit on that basis.”

The Fourth Circuit panel heard the appeals of two challenges to the health care act that yielded opposite results late last year.

In one challenge, by Attorney General Kenneth T. Cuccinelli II of Virginia, Judge Henry E. Hudson of Federal District Court in Richmond ruled that by requiring most Americans to buy insurance — a commercial product — the mandate exceeded Congress’s authority to regulate interstate commerce. In the other, filed by Liberty University, Judge Norman K. Moon of Federal District Court in Lynchburg, Va., found that the mandate fell comfortably within “well-settled principles” set by the Supreme Court.

The Virginia health care cases are the first of four scheduled for appellate hearings during the next five weeks. The Court of Appeals for the Sixth Circuit, in Cincinnati, will hear arguments on June 1 in the appeal of a ruling upholding the law. A week later, the Court of Appeals for the 11th Circuit, in Atlanta, will hear the Obama administration’s appeal of a Florida judge’s ruling that invalidated the entire act. That judge suspended his ruling until appellate courts could hear the case.

It is widely anticipated that the Supreme Court will ultimately settle the matter, although it is not clear which of several cases it might take. That may depend on how and when the appeals courts rule.

If, for instance, the three-judge panel rules against Virginia, the commonwealth expects to appeal directly to the Supreme Court without requesting a hearing before the full Fourth Circuit bench, Mr. Cuccinelli, a Republican, said on Tuesday. But if the Fourth Circuit rules that Virginia does not have standing to challenge the law, the Supreme Court could wait for a case that gives it a more focused look at the central issues.

In Tuesday’s hearing, Mr. Katyal slightly shifted the emphasis in the government’s defense of the health law. He tried to steer the judges away from a semantic focus on whether a failure to buy health insurance constituted activity or inactivity, a question that has divided the lower courts.

Past Supreme Court decisions have backed Congress’s authority under the Constitution’s Commerce Clause to regulate “activities” that have a substantial effect on interstate commerce. But the court has never considered whether the term can be defined so broadly as to include decisions not to do something.

Mr. Katyal argued instead that the activity being regulated by the health care law is merely the means of payment by Americans who will inevitably enter the health care market and who will shift costs to others if they are not insured.

“Congress is not asking people to buy something they would not otherwise buy,” Mr. Katyal said.

Mathew D. Staver, the dean of Liberty University’s law school, disputed that assertion. The health care act, Mr. Staver said, “forces inactive bystanders into the stream of commerce.”

Battle Over Health Care Law Shifts to Federal Appellate Courts

At Tuesday’s hearing, the United States Court of Appeals for the Fourth Circuit will consider a pair of contradictory rulings sent up from the lower courts. In one case, filed by Virginia’s attorney general, a federal district judge in Richmond ruled late last year that Congress had exceeded its authority by requiring most Americans to obtain health insurance. In the other, filed by Liberty University, a conservative Christian institution, a district judge sitting 100 miles away in Lynchburg, Va., upheld the insurance mandate.

If the appellate courts act quickly, the question of the health law’s constitutionality could land before the Supreme Court as soon as the next term, which opens in October.

With the lower courts divided, each side hopes to build a string of victories in the midlevel Courts of Appeals.

“We want to win as many of these as we can,” said Attorney General Kenneth T. Cuccinelli II of Virginia, a Republican. “If we have nothing but wins all the way up to the Supreme Court, there is an element of momentum, I think, where the justices consider what has gone on before the case came to them.”

Since the enactment of the Affordable Care Act in March 2010, 31 lawsuits have been filed to challenge it, according to the Justice Department, which is defending the Obama administration. Nine are awaiting action by Courts of Appeals, and nine are pending in federal district courts. The others have been dismissed.

Three district judges appointed by Democratic presidents have upheld the law while two Republican appointees have struck down part or all of it.

On June 1, the Court of Appeals for the Sixth Circuit in Cincinnati is scheduled to hear the appeal of a ruling in favor of the law. On June 8, the Court of Appeals for the 11th Circuit in Atlanta will review a Florida judge’s ruling that invalidated the entire act. That judge later suspended his own order until higher courts could settle the matter.

The Supreme Court recently turned down a request by Mr. Cuccinelli that it hear the case without review by the Court of Appeals.

In Tuesday’s hearing, a three-judge panel will first hear arguments in the case filed by Liberty University and then in the one filed by Mr. Cuccinelli. The makeup of the randomly selected panel will not be revealed until Tuesday morning.

With the addition of four appointees by President Obama, the Fourth Circuit bench now includes seven members named by Democratic presidents and seven named by Republicans. The loser before the three-judge panel may petition for a hearing before the entire court before taking the case to the Supreme Court.

The Obama administration will be represented in each of the appellate cases by Neal K. Katyal, the acting solicitor general.

Solicitors general more typically argue for the federal government before the Supreme Court. Although it is not unprecedented for them to appear before Courts of Appeals, Mr. Katyal’s assignment is seen as a nod to the significance of the case.

E. Duncan Getchell Jr., Virginia’s solicitor general, will speak for the commonwealth, as he did in the district court, and Liberty University will be represented by Mathew D. Staver, the dean of its law school.

The plaintiffs in the 11th Circuit case, including Republican officials from 26 states, will be represented by Paul D. Clement, a United States solicitor general under President George W. Bush. Mr. Clement recently resigned from King & Spalding after it withdrew its support for his defense of a federal law banning recognition of same-sex marriages.

Scores of politicians, economists and interest groups have filed friend-of-the-court briefs on both sides of the health care litigation.

The Virginia and Liberty University cases bear some differences. But both challenge the insurance requirement on the ground that it cannot be supported by the commerce clause of the United States Constitution, which gives Congress broad but not unlimited authority to regulate interstate commerce. Starting in 2014, the health care law would require most Americans to obtain policies or pay an income tax penalty.

The plaintiffs complain that the government has never before forced citizens to buy a commercial product. In the lower courts, arguments have centered on whether a choice to not buy insurance constitutes the kind of economic “activity” that the Supreme Court has, in the past, found subject to federal regulation.

The judges are also being asked to determine whether Virginia has legal standing to challenge the law, whether the insurance requirement can be supported under Congress’s authority to tax, whether it runs afoul of religious liberties, whether employers can be required to contribute to their workers’ health coverage, and whether a finding against one provision of the law should invalidate the entire act.

 

Battle Over Health Care Law Shifts to Federal Appellate Courts

At Tuesday’s hearing, the United States Court of Appeals for the Fourth Circuit will consider a pair of contradictory rulings sent up from the lower courts. In one case, filed by Virginia’s attorney general, a federal district judge in Richmond ruled late last year that Congress had exceeded its authority by requiring most Americans to obtain health insurance. In the other, filed by Liberty University, a conservative Christian institution, a district judge sitting 100 miles away in Lynchburg, Va., upheld the insurance mandate.

If the appellate courts act quickly, the question of the health law’s constitutionality could land before the Supreme Court as soon as the next term, which opens in October.

With the lower courts divided, each side hopes to build a string of victories in the midlevel Courts of Appeals.

“We want to win as many of these as we can,” said Attorney General Kenneth T. Cuccinelli II of Virginia, a Republican. “If we have nothing but wins all the way up to the Supreme Court, there is an element of momentum, I think, where the justices consider what has gone on before the case came to them.”

Since the enactment of the Affordable Care Act in March 2010, 31 lawsuits have been filed to challenge it, according to the Justice Department, which is defending the Obama administration. Nine are awaiting action by Courts of Appeals, and nine are pending in federal district courts. The others have been dismissed.

Three district judges appointed by Democratic presidents have upheld the law while two Republican appointees have struck down part or all of it.

On June 1, the Court of Appeals for the Sixth Circuit in Cincinnati is scheduled to hear the appeal of a ruling in favor of the law. On June 8, the Court of Appeals for the 11th Circuit in Atlanta will review a Florida judge’s ruling that invalidated the entire act. That judge later suspended his own order until higher courts could settle the matter.

The Supreme Court recently turned down a request by Mr. Cuccinelli that it hear the case without review by the Court of Appeals.

In Tuesday’s hearing, a three-judge panel will first hear arguments in the case filed by Liberty University and then in the one filed by Mr. Cuccinelli. The makeup of the randomly selected panel will not be revealed until Tuesday morning.

With the addition of four appointees by President Obama, the Fourth Circuit bench now includes seven members named by Democratic presidents and seven named by Republicans. The loser before the three-judge panel may petition for a hearing before the entire court before taking the case to the Supreme Court.

The Obama administration will be represented in each of the appellate cases by Neal K. Katyal, the acting solicitor general.

Solicitors general more typically argue for the federal government before the Supreme Court. Although it is not unprecedented for them to appear before Courts of Appeals, Mr. Katyal’s assignment is seen as a nod to the significance of the case.

E. Duncan Getchell Jr., Virginia’s solicitor general, will speak for the commonwealth, as he did in the district court, and Liberty University will be represented by Mathew D. Staver, the dean of its law school.

The plaintiffs in the 11th Circuit case, including Republican officials from 26 states, will be represented by Paul D. Clement, a United States solicitor general under President George W. Bush. Mr. Clement recently resigned from King & Spalding after it withdrew its support for his defense of a federal law banning recognition of same-sex marriages.

Scores of politicians, economists and interest groups have filed friend-of-the-court briefs on both sides of the health care litigation.

The Virginia and Liberty University cases bear some differences. But both challenge the insurance requirement on the ground that it cannot be supported by the commerce clause of the United States Constitution, which gives Congress broad but not unlimited authority to regulate interstate commerce. Starting in 2014, the health care law would require most Americans to obtain policies or pay an income tax penalty.

The plaintiffs complain that the government has never before forced citizens to buy a commercial product. In the lower courts, arguments have centered on whether a choice to not buy insurance constitutes the kind of economic “activity” that the Supreme Court has, in the past, found subject to federal regulation.

The judges are also being asked to determine whether Virginia has legal standing to challenge the law, whether the insurance requirement can be supported under Congress’s authority to tax, whether it runs afoul of religious liberties, whether employers can be required to contribute to their workers’ health coverage, and whether a finding against one provision of the law should invalidate the entire act.

 

Battle Over Health Care Law Shifts to Federal Appellate Courts

At Tuesday’s hearing, the United States Court of Appeals for the Fourth Circuit will consider a pair of contradictory rulings sent up from the lower courts. In one case, filed by Virginia’s attorney general, a federal district judge in Richmond ruled late last year that Congress had exceeded its authority by requiring most Americans to obtain health insurance. In the other, filed by Liberty University, a conservative Christian institution, a district judge sitting 100 miles away in Lynchburg, Va., upheld the insurance mandate.

If the appellate courts act quickly, the question of the health law’s constitutionality could land before the Supreme Court as soon as the next term, which opens in October.

With the lower courts divided, each side hopes to build a string of victories in the midlevel Courts of Appeals.

“We want to win as many of these as we can,” said Attorney General Kenneth T. Cuccinelli II of Virginia, a Republican. “If we have nothing but wins all the way up to the Supreme Court, there is an element of momentum, I think, where the justices consider what has gone on before the case came to them.”

Since the enactment of the Affordable Care Act in March 2010, 31 lawsuits have been filed to challenge it, according to the Justice Department, which is defending the Obama administration. Nine are awaiting action by Courts of Appeals, and nine are pending in federal district courts. The others have been dismissed.

Three district judges appointed by Democratic presidents have upheld the law while two Republican appointees have struck down part or all of it.

On June 1, the Court of Appeals for the Sixth Circuit in Cincinnati is scheduled to hear the appeal of a ruling in favor of the law. On June 8, the Court of Appeals for the 11th Circuit in Atlanta will review a Florida judge’s ruling that invalidated the entire act. That judge later suspended his own order until higher courts could settle the matter.

The Supreme Court recently turned down a request by Mr. Cuccinelli that it hear the case without review by the Court of Appeals.

In Tuesday’s hearing, a three-judge panel will first hear arguments in the case filed by Liberty University and then in the one filed by Mr. Cuccinelli. The makeup of the randomly selected panel will not be revealed until Tuesday morning.

With the addition of four appointees by President Obama, the Fourth Circuit bench now includes seven members named by Democratic presidents and seven named by Republicans. The loser before the three-judge panel may petition for a hearing before the entire court before taking the case to the Supreme Court.

The Obama administration will be represented in each of the appellate cases by Neal K. Katyal, the acting solicitor general.

Solicitors general more typically argue for the federal government before the Supreme Court. Although it is not unprecedented for them to appear before Courts of Appeals, Mr. Katyal’s assignment is seen as a nod to the significance of the case.

E. Duncan Getchell Jr., Virginia’s solicitor general, will speak for the commonwealth, as he did in the district court, and Liberty University will be represented by Mathew D. Staver, the dean of its law school.

The plaintiffs in the 11th Circuit case, including Republican officials from 26 states, will be represented by Paul D. Clement, a United States solicitor general under President George W. Bush. Mr. Clement recently resigned from King & Spalding after it withdrew its support for his defense of a federal law banning recognition of same-sex marriages.

Scores of politicians, economists and interest groups have filed friend-of-the-court briefs on both sides of the health care litigation.

The Virginia and Liberty University cases bear some differences. But both challenge the insurance requirement on the ground that it cannot be supported by the commerce clause of the United States Constitution, which gives Congress broad but not unlimited authority to regulate interstate commerce. Starting in 2014, the health care law would require most Americans to obtain policies or pay an income tax penalty.

The plaintiffs complain that the government has never before forced citizens to buy a commercial product. In the lower courts, arguments have centered on whether a choice to not buy insurance constitutes the kind of economic “activity” that the Supreme Court has, in the past, found subject to federal regulation.

The judges are also being asked to determine whether Virginia has legal standing to challenge the law, whether the insurance requirement can be supported under Congress’s authority to tax, whether it runs afoul of religious liberties, whether employers can be required to contribute to their workers’ health coverage, and whether a finding against one provision of the law should invalidate the entire act.