Virginia Attorney General Ken Cuccinelli’s lawsuit against the federal health care overhaul will be heard by a three-judge appellate panel in Richmond Tuesday — another step in a process both sides predict will ultimately end up before the U.S. Supreme Court.
A randomly-elected panel from the Fourth U.S. Circuit Court of Appeals will hear arguments from both the federal government and the state of Virginia. Acting U.S. Solicitor General Neal Katyal will argue the federal government’s case, while Virginia Solicitor General Duncan Getchell will argue for the commonwealth.
At the heart of the case is the state’s challenge to the so-called “individual mandate” in the law that will eventually require most Americans to purchase health insurance or face a penalty. Cuccinelli has argued that the provision lies beyond the scope of federal authority. The Justice Department maintains that the provision falls under the Congress’s power to regulate interstate commerce.
The country’s highest court recently denied Cuccinelli’s petition to bypass the normal appellate process and directly hear the case.
The ideological makeup of the 14-judge court, long considered to have a conservative tilt, could play a key factor in how it rules. Seven of the judges are now Democratic nominees, though Chief Justice William Traxler was nominated to a federal bench by George H.W. Bush, before being named to the Fourth Circuit by Bill Clinton. The identities of the judges on the panel will not be unveiled until Tuesday morning.
Federal court rulings on challenges to the law have, thus far, split along ideological lines, with Democratically appointed judges, including one in a separate case in Virginia, ruling the law constitutional, and Republican-appointed judges, including Judge Roger Vinson in a multi-state case in Florida, declaring the mandate unconstitutional.
In Cuccinelli’s case, U.S. District Judge Henry Hudson ruled the individual mandate provision unconstitutional but declined to strike down the entire law, as Vinson did (though Vinson later stayed the ruling so that higher courts could act). The federal government subsequently appealed.
The court on Tuesday will also hear an appeal in a separate case filed by Liberty University, in which U.S. District Judge Norman Moon ruled that the law is constitutional.
