Although challenges to the Obama administration's health care law are being heard across the country, two important appellate court rulings are expected this summer that could determine whether the issue eventually lands in front of the Supreme Court.
The heart of the issue is whether the individual mandate -- a key provision of the Affordable Care Act (ACA) that requires most individuals to buy health insurance by 2014 or pay a penalty -- is constitutional. Critics of the ACA say Congress exceeded its authority when it passed the law.
Appellate Rulings so Far
Only one appellate court has ruled on the issue. In June a divided panel of judges from the Sixth Circuit Court of Appeals found in favor of the Obama administration in a challenge brought by the Thomas More Law Center, a public interest law firm, and four individuals.
The ruling was significant because it marked the first time a judge appointed by a Republican president voted in favor of the mandate. Judge Jeffrey S. Sutton was nominated to the bench by George W. Bush and he clerked for conservative Justice Antonin Scalia.
Bradley Joondeph, a law professor at Santa Clara University points out that Sutton is considered an "intellectual leader among judicial conservatives" with a long record of supporting the cause of federalism -- and limiting the power of the federal government vis-a-vis the states.
"His opinion shows that principled conservatives can conclude that the law is constitutional," Joondeph said. "This, in turn, makes it much easier for a conservative Supreme Court justice -- such as Justice Kennedy or Chief Justice Roberts--to reach the same conclusion."
Fourth Circuit: Arguments heard May 10 in Richmond, Va.
A panel of three judges heard two cases: Liberty University v. Geithner and Virginia v. Sebelius. The panel consisted of Judge Diana Gribbon Motz, nominated to the bench by President Bill Clinton, Judge Andre M. Davis and Judge James A. Wynn Jr., both appointed by President Barack Obama but chosen by a random computer model.
Although the panel seemed receptive to the Obama administration's arguments on the constitutional merits, the panel also hinted it might throw out one of the cases on jurisdictional issues.
In both cases the government argued that Congress was well within its authority to regulate interstate commerce when it passed the individual mandate.
Acting Solicitor General Neal Katyal (who has since left his job to join the private sector) said that health care is a unique market and that even if an individual chooses not to buy health insurance, that choice still makes an economic impact across the country. He pointed out that in 2008 alone the costs of the uninsured cost other market players $43 billion.
Liberty University, a Christian College, argued that while the Constitution might allow congress to regulate interstate economic activity, it can not regulate an individual's choice not to buy health insurance.
Matt Staver, a lawyer for the school, said that an individual's choice not to enter a marketplace is an "inactivity" outside the reach of Congress under the Commerce Clause.