Obama Health Care Law: Challenge Inches Toward Supreme Court

May 9, 2011— -- Justice Department lawyers are preparing to defend the constitutionality of the Affordable Care Act, the Obama administration's most celebrated legislative achievement. The arguments, to begin Tuesday morning, mark the first time a challenge to the health care law has been heard by a federal appeals court.

Acting Solicitor General Neal Katyal will argue that the law makes health care coverage widely available, protects consumers from insurance industry underwriting practices, and reduces the cost of uncompensated care that was previously borne by those with health insurance.

But critics say the law is unconstitutional. They say that Congress exceeded its authority when it passed the main provision of the law that requires an individual to buy health insurance by 2014 or face a tax penalty.

The United States Court of Appeals for the Fourth Circuit will hear two cases, one brought by the Commonwealth of Virginia, the other by Liberty University, a private Christian school.

The administration contends that the Constitution empowers Congress to regulate interstate economic activity. It points to the costs the uninsured have passed on to providers, patients and the insured population.

"Millions of people without health insurance have consumed health care services for which they do not pay," says Katyal in court briefs. "These uncompensated costs -- totaling $43 billion in 2008 -- are shifted to health care providers regularly engaged in interstate commerce."

He says the law was an attempt by the elected branches of government "to stem a crisis in the health care market that has threatened the vitality of the U.S. economy."

Kenneth T. Cuccinelli II, the Attorney General of Virginia, says in court briefs that while Congress can regulate interstate activity, it cannot regulate inactivity. He says the individual mandate compels people to buy insurance against their will.

"Extending congressional power to the point of requiring a citizen to purchase a good or service from another citizen violates structural federalism because it is tantamount to a national police power. "

Cuccinelli also argues that the law conflicts with a state law already on the books that says residents cannot be forced to buy health insurance.

Katyal will challenge Virginia's ability to bring the suit in the first place, arguing that only individual residents can bring such a challenge.

The second case involves a challenge from Liberty University, which does not want to be forced to buy health insurance that might not be "compatible" with its employees' Christian values. Two Virginia residents, Michele G. Waddell and Joanne V. Merrill, are also a part of the suit. They argue that they want to manage their health care privately.

So far, three federal district court judges have upheld the law, and two others have found the individual mandate to be unconstitutional. The three who upheld the law were appointed by Democratic presidents; those who struck it down were appointed by Republicans.

The Fourth Circuit will not announce which judges will make up the panels hearing the cases until the morning of arguments.

It is expected that the issue could reach the Supreme Court as early as next term, in the heat of the next presidential debate.