On Tuesday, a federal appellate court — the U.S. Court of Appeals for the Fourth Circuit — will hear, for the first time, arguments over the constitutionality of the Affordable Care Act.  In the historic courthouse in Richmond, VA, the Fourth Circuit will hear back-to-back arguments in Liberty University v. Geithner, in which the district court judge upheld the Act, and Virginia v. Sebelius, in which the lower court found the minimum coverage provision unconstitutional.  (Virginia Attorney General Ken Cuccinelli was just handed a defeat in his attempt to convince the Supreme Court to bypass normal appellate court review and hear Virginia’s lawsuit against the health care reform law immediately, a request that the High Court unanimously denied). 

The argument day should prove exciting.  Acting U.S. Solicitor General Neal Katyal — an eloquent and impressive advocate, who generally only appears on behalf of the United States in the Supreme Court — will argue on behalf of the federal government in both cases.  In addition, the names of the randomly-chosen three judges who will hear the cases will not be released until the morning of the argument.  Given that the Fourth Circuit is nearly evenly split between Republican- and Democratic-appointees, which judges are selected to be on the panel could be very important.

But it really shouldn’t matter which judges are on the bench.  The constitutionality of the minimum coverage provision is clear as a matter of constitutional text and history, as CAC details in the brief we filed in Virginia v. Sebelius, and under Supreme Court precedent, from McCulloch v. Maryland to Gonzales v. Raich.  Regardless of whether the Fourth Circuit panel hearing the case is composed of liberal judges like Diana Motz or conservatives like J. Harvie Wilkinson III, the result should be the same: the ACA is constitutional.

Indeed, it could be Fourth Circuit precedent authored by none other than Judge Wilkinson that provides support for upholding the ACA under the Commerce Clause.  In an Endangered Species Act case, Gibbs v. Babbitt (2000), Wilkinson recognized that the Constitution requires a broad view of what constitutes “economic activity” under the Commerce Clause — in Gibbs, the relevant activity was the hunting of red wolves — because “a cramped view of commerce would cripple a foremost federal power and in so doing would eviscerate national authority.”  Even though the specific act of killing an endangered red wolf might not in and of itself constitute “economic activity,” Wilkinson found that it was reasonable for Congress to determine that the aggregate effect of taking red wolves and the spillover effects substantially affect interstate commerce, particularly given the federal interest in safeguarding natural resources.

In fact, if the Fourth Circuit follows not just the precedent but also the advice of Judge Wilkinson, the panel should have no trouble reversing the lower court’s egregiously flawed ruling in Virginia v. Sebelius.  In the wake of the Supreme Court’s ruling in Heller v. District of Columbia recognizing an individual Second Amendment right to have a gun for self-defense, Wilkinson broke with his conservative friends and decried the decision as a dereliction of judicial principles.  Comparing Heller to Roe v. Wade (which, for conservatives, is probably the worst thing one can say about a judicial decision), Wilkinson claimed that the ruling in Heller was marked by “an absence of a commitment to textualism” and represented “an act of judicial aggrandizement” by transferring “power to judges from the political branches of government.”  Wilkinson even quoted Justice Brandeis’s warning to judges that “we must be ever on our guard, lest we erect our prejudices into legal principles.”  Judge Henry Hudson, who made no secret of his dislike for the minimum coverage provision in his ruling in Virginia v. Sebelius in the district court, unfortunately did not follow Judge Wilkinson’s reminder that judges should keep their policy prejudices out of their rulings, and focus instead on the words and meaning of our Constitution.

So, it really shouldn’t matter whether or not the Fourth Circuit judges whose names are announced Tuesday morning to hear argument in the health care reform law challenges think that the Affordable Care Act is a much-needed and welcome reform — or the worst idea ever.  If the judges stick to Judge Wilkinson’s principles of textualism, respect for the decisions of the democratically-elected branches of government, and legal objectivity, they will find the Act constitutional.  As the brief of the United States demonstrates, the Act and its minimum coverage provision, in particular, are valid exercises of Congress’s constitutional powers.  As CAC’s brief explains, Congress’s regulation of the health care industry is wholly in line with what our Nation’s Founders — including luminaries such as George Washington and Alexander Hamilton — envisioned when they crafted our Constitution.  (See these Text & History posts, here and here, for more.)

Of course, the Fourth Circuit might not even get to these issues, in the Virginia case at least, by holding that the Commonwealth lacks standing to challenge the minimum coverage provision.  We won’t know for sure until the court issues its ruling, but Tuesday’s arguments will likely contain valuable clues as to the Fourth Circuit’s inclinations.

Stay tuned to Text & History for post-argument analysis.