A panel of three Federal Appeals Court judges today expressed skepticism of legal arguments against the Obama administration's health care law during a hearing in Richmond, Va.
Two hotly-contested cases, argued in the courtroom today, challenge the constitutionality of a key provision of the landmark law, which requires individuals to buy health care insurance by 2014 or face a tax penalty.
All three judges on the panel were appointed to the circuit by Democratic presidents -- two by President Obama and a third by President Bill Clinton. The judges were randomly picked by a computer program.
Matt Staver, a lawyer for Liberty University, an evangelical Christian school challenging the law, argued in the first case that the so-called "individual mandate" is unconstitutional because Congress does not have the authority to force Americans to participate in a marketplace.
While the Constitution might allow Congress to regulate interstate economic activity, it cannot regulate an individual's choice to remain inactive and refrain from buying health insurance, Staver argued.
Judge Diana Gribbon Motz, the Clinton appointee, questioned the distinction between activity and inactivity, pressing Staver to "define the dividing line" between the two.
"The Constitution does not talk about activity," she said.
Staver replied that "to simply be idle is not an activity."
Judge Andre M. Davis, who was appointed by Obama, offered a poignant hypothetical example to illustrate the spiraling costs of health care and its interstate implications, particularly for the uninsured.
Davis described a road trip taken by four "twenty-somethings" who are involved in a horrific crash as they drove from Virginia to a beach in Maryland. Under the scenario, the four survive, but the cost for the unexpected crash totals "hundreds of thousands" of dollars.
Davis asked Staver whether Congress truly has no power to address "in aggregate" such accidents that happen frequently and involve the uninsured.
Staver replied that Congress could not do so under the individual mandate.
Acting Solicitor General Neal Katyal defended the health care law's individual insurance mandate, saying that Congress was within its authority to regulate interstate commerce under the Commerce Clause of the Constitution.
Even if an individual chooses not to buy health insurance, Katyal said, that choice still makes an economic impact and said that in 2008 the costs of the uninsured totaled $43 billion.
"Congress is regulating a means of payment" for health insurance that any American might unexpectedly need, he said.
In a second case heard by the appellate panel, the judges also seemed skeptical of the whether or not the state of Virginia has the legal right, or "standing," to bring the case.
"This case fails at the outset," argued Katyal, because the individual mandate applies to only individuals, and not the Commonwealth of Virginia.
E. Duncan Getchell Jr., the Solicitor General of Virginia, argued that his state does have the right to challenge the law because it interferes with a state law already on the books. He said that residents cannot be forced to buy health insurance.
The argument provoked an exclamation from Judge Davis. "How on earth can it be standing," he said, if in order to establish standing a state government need only enact a law of its own.
Getchell emphasized the deliberation that goes into enacting such a law and said it was not some "low trick" to pass it.
After the hearing, Virginia Attorney General Kenneth Cuccinelli defended his state's legal challenge, saying that "the federal government thinks it can tell states to disregard their own laws."
But Kevin Walsh, a law professor at the University of Richmond who signed a brief supporting the Obama administration, said he believes the three-judge panel didn't buy Cuccinelli's argument.
"Solicitor General Katyal encountered very little resistance to his argument that Virginia lacked standing to challenge the individual mandate," Walsh said, adding that he believes the government could win both cases.
Randy Barnett, a Georgetown University law professor who is representing challengers to the law in a separate case, said he isn't so sure.
"The panel asked tough questions on both sides, and as Judge Motz suggested this case will ultimately be decided by the Supreme Court," he said.
Two other appellate courts will hear similar challenges to the law this spring. Court watchers believe the issue could reach the nation's highest court sometime during the term that begins in the fall of 2011.