Washington Times
Federal appeals courts set to hear ‘Obamacare’ cases
By Paige Winfield Cunningham
May 9, 2011

Last year’s massive health care overhaul is about to face a round of hearings in federal appeals courts, beginning Tuesday when the 4th U.S. Circuit Court of Appeals hears competing cases about the law’s constitutionality.

Two lower-court judges in Virginia last year ruled in opposite ways: One judge upheld the law, turning back a challenge by Liberty University, while another judge struck down key parts of the law, upholding state Attorney General Kenneth T. Cuccinelli II’s lawsuit.

The losing parties in both cases are now going to the appeals court in Richmond, where a three-judge panel will hear the cases. They center on whether the government can require every American to purchase health insurance or face a tax penalty — the so-called “individual mandate.”

“The individual mandate is the threat to liberty,” Mr. Cuccinelli told The Washington Times. “That is the most important thing we’re addressing here.”

Five lower federal courts have so far ruled on the individual mandate. Three judges appointed by Democrats have ruled that it is constitutional and two judges appointed by Republicans have ruled it is unconstitutional.

The 4th Circuit Court will be the first appeals court to take up challenges to the health care law. Two more appeals are scheduled for hearings, in Michigan on June 1 and in Florida on June 8. Both sides expect the disputes to eventually work their way up to the Supreme Court, which last month turned down a request by Mr. Cuccinelli to divert them from the appeals process and hear them more quickly.

A ruling from the appeals court in Richmond is expected within about three months, said Elizabeth Wydra, counsel for the Constitutional Accountability Center, a left-leaning, Washington, D.C.-based think tank that has filed an amicus brief defending the constitutionality of the health care act.

“The 4th Circuit generally gets their opinions out pretty quickly,” Ms. Wydra said. “What I think will be interesting is to see the appellate court judges take on not the political firestorm, but the constitutional law issues.”

Opponents say the federal government cannot force individuals to buy a particular good or service, while supporters say the mandate is constitutional under the so-called “commerce clause” of the Constitution. Those supporters say that because everyone will use the health care market at some point, it is an acceptable use of federal interstate commerce powers to require them to buy insurance upfront.

Liberty University is also challenging a provision that requires employers to offer health insurance if they employ more than 50 people.

The panel, whose members won’t be disclosed until Tuesday morning, will hear the cases back to back. Acting U.S. Solicitor General Neal Katyal will present the federal government’s case, while commonwealth Solicitor General Duncan Getchell will argue for Virginia. Mathew Staver, dean of the Liberty University School of Law, will argue the school’s case.

Mr. Cuccinelli, a Republican, who opted to file a separate challenge by Virginia instead of participating in a similar lawsuit filed by more than two dozen states, thinks the Justice Department will continue to appeal as long as possible.

“If we win, we believe they will ask for unbiased review because that will drag it out a couple more months,” he said. “But eventually, we’re going to have a final ruling and whoever loses will appeal the case to the Supreme Court and they’re going to take the case.”