RICHMOND – A panel of three judges – all of whom were appointed by Democratic presidents – heard the first appellate court arguments against the federal health care overhaul, President Obama’s signature domestic policy, in a Richmond courtroom Tuesday.
The panel heard arguments in two cases challenging the law. One suit, filed by Liberty University, had previously been tossed by a federal judge.
The other, higher-profile case was brought by Attorney General Ken Cuccinelli. A federal judge had previously ruled in Cuccinelli’s case that the central plank of the health care law – the provision that requires every American purchase health insurance eventually or pay a penalty – was unconstitutional.
The 14-judge Fourth U.S. Circuit Court of Appeals is evenly split among Democratic and Republican appointees. The panel hearing Cuccinelli’s case was randomly selected, however, and parties did not learn the identities of the judges until Tuesday morning. Diana Gribbon Motz was appointed by President Bill Clinton, and Andre M. Davis and James A. Wynn Jr. were both appointed by President Obama.
Acting Solicitor General Neal Katyal argued for the Obama administration in both cases, with Mathew Staver, Dean of the Liberty University School of Law arguing in Liberty University’s case and Virginia Solicitor General E. Duncan Getchell, Jr. arguing in Cuccinelli’s case.
The judges probed Staver on the notion of whether or not the federal government can regulate interstate commerce, with Staver saying that the law goes beyond the bounds of the Constitution by regulating “noneconomic inactivity.”
Katyal, contended that people – health care consumers – are, in fact, participating in the market.
“Activity is participation in the health care market,” said Katyal. “One can’t opt out of it on an individual basis…and providers can’t opt out of it.”
Later on, Getchell found himself defending whether or not Virginia has standing to challenge the law, since the state suing in federal court on behalf of its citizens, whereas the Liberty case involves private individuals.
Getchell noted that the Virginia General Assembly passed a law stipulating that no Virginia can be forced to purchase health insurance, and said that if federal court isn’t the forum to bring such an argument, then there is no forum.
The issue is making its way through other courts as well, though all parties believe it will ultimately be decided by the U.S. Supreme Court.
