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.

 

New Federal Crackdown Confounds States That Allow Medical Marijuana

As some states seek to increase regulation but also further protect and institutionalize medical marijuana, federal prosecutors are suddenly asserting themselves, authorizing raids and sending strongly worded letters that have cast new uncertainty on an issue that has long brimmed with tension between federal and state law.

How can a drug that federal drug law says is criminal be considered medicine under state law?

“It’s weird,” said Kevin Griffin, co-founder of West Coast Wellness, a medical marijuana dispensary that opened here in February. “We’re not a pharmacy. We spent a lot of time gathering information, and this is what we came up with as the most responsible, legal way.”

Posters featuring Pink Floyd and Tupac Shakur lined the white walls of the office, in the back of a bland building just inside Seattle’s northern boundary. Glass pipes decorated a shelf. And then there was the medicine, available by “donation only,” which included less expensive “medibles” like lollipops and “pot” pies and the traditional smoked dosages at about $280 an ounce. Questions? Just ask the “budtender” — while you still can.

“I’m worried,” Mr. Griffin said. “We might lose something we put a lot of money into.”

West Coast Wellness, one of scores of new dispensaries in the state, opened just as Washington appeared ready to approve one of the nation’s most expansive medical marijuana policies, broadening its original 1998 law to include licensing growers and dispensaries. The Legislature passed the measure last month. Yet while Gov. Christine Gregoire had initially expressed support, she instead vetoed most of the bill, specifically citing new concerns about federal opposition.

“The landscape has changed,” said the governor, a Democrat.

Letters so far have gone out to governors in Arizona, Colorado, Montana, Rhode Island, Vermont and Washington, prompting some states — including Rhode Island and Montana, in addition to Washington — to revise or back away from plans to make the medical marijuana industry more mainstream.

In Washington, Ms. Gregoire asked for guidance from the state’s two United States attorneys, Mike Ormsby and Jenny Durkan. In a reply to the governor last month, they said the federal government would prosecute “vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”

The changes have angered supporters of medical marijuana, who say the federal government is sending mixed signals, even as they argue that it has not technically changed its position.

“How they’re obviously coming across is saber rattling,” said Alison Holcomb, director of drug policy for the American Civil Liberties Union of Washington. “If there has been a shift, then somebody needs to own up to that. We have a very clear memo from 2009.”

In October 2009, the Justice Department said in a memorandum drafted by David W. Ogden, then the deputy attorney general, that it would not focus on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

The memo did not allow farms and dispensaries or the buying and selling of marijuana. In many states that allow medical marijuana, state law does not specify that dispensaries are also legal. The Washington State Department of Health’s Web site specifically says that dispensaries are illegal, as is buying and selling marijuana. It says that people who qualify for medical marijuana are allowed to grow their own.

Yet with some states and even the federal government appearing to look the other way, farming collectives and dispensaries flourished. And law enforcement officials at various levels took notice. In Spokane, Wash., federal agents recently conducted searches of seven dispensaries, though no one was arrested.

“There didn’t seem to be a recognition that the use and sale of marijuana is against federal law,” said Mr. Ormsby, the United States attorney for the Eastern District of Washington.

When the Legislature was drafting the bill it passed in its most recent regular session, Mr. Ormsby said, “No one consulted with me about what I thought of what they were going to do and did I think it ran afoul of federal law.”

Of the state’s current medical marijuana law, he added, “We believe, of course, under federal law no part of the state law is legal.”

Mr. Ormsby and other prosecutors say they agree that the federal position has not changed, and they say they have been given no new directive from the Justice Department (Mr. Ormsby’s and Ms. Durkan’s letter to Ms. Gregoire said they had “consulted with the attorney general,” Eric H. Holder Jr.).

A spokeswoman for the Justice Department, Jessica Smith, said: “This is not a change in policy. It’s a reiteration of the guidance that was handed down in 2009 by the deputy attorney general.”

Ms. Smith noted that the 2009 memo “says definitively that distribution continues to be a federal offense.”

Some federal prosecutors say states have simply let medical marijuana get out of hand. Many supporters of medical marijuana agree.

“Seeing storefront dispensaries advertise with neon pot leaves is inconsistent with the idea most people have of medical marijuana,” said Ms. Holcomb, of the A.C.L.U. “But until you let states regulate these dispensaries, you have no way to control that.”

Some people on each side say the issue could quickly be solved if the federal government reclassified marijuana from a Schedule 1 drug, a category that includes heroin, to a Schedule 2 drug, which includes medicines that can be prescribed.

“I think the onus is on the federal government,” said State Senator Jeanne Kohl-Welles, a Democrat from Seattle who sponsored the bill that Ms. Gregoire vetoed. “Whether the Obama administration is signaling that it’s going to be more aggressive or back off from what’s in that Ogden memo, I don’t know.”

Noting that Ms. Gregoire cited concerns that state employees could face legal action for licensing growers and dispensaries, and that prosecutors had insisted that state employees “would not be immune” from prosecution, Ms. Kohl-Welles said: “I keep trying to visualize federal agents going into a state building, the Department of Health, and hauling people off.”

She continued, “I can’t conceptualize that.”

This article has been revised to reflect the following correction:

Correction: May 8, 2011

An earlier version of this article erroneously classified cocaine as a Schedule 1 drug.

 

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.