RICHMOND – A three-judge appeals court panel heard arguments in two Virginia cases challenging the federal health care overhaul Tuesday — another step in a process that most believe will ultimately end up before the U.S. Supreme Court. Before a packed Richmond courtroom, the panel, all Democratic appointees randomly selected from the Fourth U.S. Circuit Court of Appeals, weighed arguments in separate cases filed by Liberty University and state Attorney General Ken Cuccinelli.
The central issue in each case is the so-called “individual mandate” provision in the law stipulating that most Americans eventually purchase health insurance or face a penalty.
The panel prodded Mathew Staver, a lawyer for Liberty University, on whether the federal government has the power to regulate commerce. Staver said that the law goes beyond the outer limits of the Constitution by “seeking to regulate noneconomic activity.”
Virginia Solicitor General E. Duncan Getchell Jr. found himself defending whether Virginia, as a state, has legal standing to pursue the case in federal court on behalf of its citizens. The General Assembly passed a law last year exempting Virginians from being forced to purchase health insurance.
“We are in the Fourth Circuit today because the U.S. Supreme Court has said that every state may defend its code of laws,” Cuccinelli said afterward. “I have said all along that this case is not about health care. It is about liberty.”
The federal government is arguing that because everyone at some point participates in the health care market, the law lies under Congress’ constitutional power to regulate interstate commerce.
Neal Kumar Katyal, acting U.S. solicitor general, defended the federal government in both cases. One federal judge had previously dismissed Liberty’s suit. In Cuccinelli’s case, Judge Henry Hudson ruled that the minimum coverage provision is unconstitutional, but declined to strike down the entire law.
Cuccinelli said that should the panel rule against him, he intends to appeal directly to the U.S. Supreme Court, which has already turned down his request to expedite the case.
The three-judge panel that heard the arguments Tuesday included Diana Gribbon Motz, who was appointed by President Clinton, and Andre M. Davis and James A. Wynn Jr., both appointees of President Obama.
Appellate court decisions typically take 45 days, and the issue could reach the Supreme Court in 2012 — just as election season revs into gear.
