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Health care challenges: Round 2

At 2 p.m. Tuesday, the Fourth Circuit Court will make available on its website an audio link to the two oral arguments to be held that morning at the Lewis F. Powell Jr. Courthouse in Richmond, Va.  The arguments are expected to last for a total of 80 minutes or more.  That hearing will focus on only a few key provisions of the new federal health care law.  A useful summary of many of the law’s major provisions has been prepared by the Kaiser Family Foundation, and can be read here.


With the Supreme Court waiting for the issue to reach it through normal court channels, the nationwide debate over the constitutionality of the new federal health care law moves on Tuesday to the federal appeals court level, for Round 2.   In the 14 months since President Obama signed into the law the sweeping Patient Protection and Affordable Care Act, 31 cases have been making their way through the first level, the U.S. District Courts, with mixed results in the nearly two dozen decided so far.  Overall, the law has been withstanding most of the challenges, but has suffered spectacular defeats in two of the cases — especially a Florida judge’s ruling that found the entire law to be invalid.  No one expects a final answer until the Supreme Court acts, maybe a year from now.

So far, four federal appeals courts have scheduled oral arguments on the challenges — the Third Circuit Court, the Fourth, the Sixth and the Eleventh.  The first of those hearings occurs on Tuesday in Richmond, Va., when the Fourth Circuit holds back-to-back arguments in two Virginia cases that resulted in conflicting District Court rulings.   Signaling the significance that the Obama Administration obviously sees in the cases, it is sending its top appellate lawyer — Acting Solicitor General Neal K. Katyal — to Richmond to argue both cases.  He will be opposed in the first by Matthew D. Staver, the law school dean at Liberty University in Lynchburg, Va., a long-time courtroom advocate of conservative causes, and by Virginia’s state Solicitor General, E. Duncan Getchell, Jr., three times rated as a “Virginia super lawyer” by Super Lawyers magazine.

Staver’s client, Liberty University, which sued in its capacity as an employer, along with two employees, lost its challenge to the law in District Court.  The appeal docket in that case is 10-2347.  Getchell’s client, the state of Virginia, won much, but not all, of its case in District Court.  The Virginia case is actually two cases combined — the U.S. government’s appeal and Virginia’s — under one docket number, 11-1057.   The hearings are due to begin at 9:30 a.m. Tuesday with the Liberty University case, set for 40 minutes of argument time.  As soon as that is concluded, the consolidated U.S.-Virginia case comes on, before the same three-judge panel.   The Circuit Court will reveal Tuesday morning which judges will be on the bench.

With this month’s argument sessions, the Fourth Circuit begins regular release of the audiotapes of its oral arguments, and the Tuesday audiotape will be available at 2 p.m. that day on the Court’s website.

After the Fourth Circuit argument, hearings will be held on June 1 by the Sixth Circuit in Cincinnati in a Michigan case, June 8 by the Eleventh Circuit in Atlanta in the Florida case, and June 23 by the Third Circuit in Philadelphia in a New Jersey case.   Appeals also are pending, without argument dates so far, in the D.C. Circuit in Washington, D.C., in the Eighth Circuit in St. Louis, and in the Ninth Circuit in San Francisco.

Twice since the law’s passage, the Supreme Court has been asked to take on the dispute before any appeals court ruled, but it refused to do so both times — on April 25 in the state of Virginia’s case (docket 10-1014) that is now proceeding in the Fourth Circuit, and on Nov. 8 in a California case (docket 10-369) now going forward in the Ninth Circuit.   The obvious message the Justices were sending: we can wait, and we no doubt will benefit from the appeals courts’ exploration of the issues first.

One or more of the cases now in the appeals courts very likely will reach the Supreme Court at some point during its next Term, which opens Oct. 3.  If one of the cases is granted review by the end of January 2012, chances are that it will be heard before that Term concludes in late June — just in time, perhaps, to add to the health care issue that seems inevitably to be a part of the 2012 presidential campaign.   The later in the Term such a case reaches the Justices’ docket, the more it would have to be expedited for a decision to be made in that Term.   The challenges have been given expedited treatment at lower court levels, and almost certainly would be at the Supreme Court, too.   Review by the Justices is, of course, not guaranteed, but it would be extremely unlikely that the Court would pass up the issue, even if the lower courts are united in how they rule on the core constitutional issue.

That core issue is, simply, whether Congress had the constitutional authority — under either its power to legislate for “interstate commerce,” or its power to pass tax laws — to impose a requirement that nearly everyone in the Nation be covered by health insurance by the year 2014.  That insurance purchase mandate is perhaps the most vital part of the entire new law: without assurances that virtually every one would be paying into the health insurance system, insurance companies supposedly would not be able to provide the significantly expanded coverage that the new law seeks to guarantee.

In most of the challenges around the country, the main claim has been that the insurance mandate would mark the first time that Congress has ever passed a law to require Americans to purchase a commercial product.   Refusal to buy insurance, the challengers have contended, is not commercial “activity” of a kind that Congress can regulate; it is “inactivity,” and Congress, they have argued, has never tried to regulate a refusal to act commercially.   The Obama Administration has responded that the impact on the entire health care delivery system, from refusals to buy insurance, would result from a definitive economic choice to forgo paying for health care and rely upon free services when, inevitably, everyone will need care.

If individuals do not have health care by 2014 (there are a few exempt categories), they will have to pay a financial penalty.  While the Administration has sometimes treated this as a tax, most lower courts have treated it as a penalty, and have analyzed its constitutionality mainly under the Commerce Clause, and not the congressional power to tax.

Before the courts rule on the core issue over the insurance mandate, they have to satisfy themselves of two procedural matters, each having to do with whether a federal court has the authority to decide the constitutional question — that is, does it have jurisdiction, in the constitutional sense?  Those procedural issues are whether a proper party has brought the challenge (the “standing” issue), and whether the law is having enough impact right now to assure that the case is not premature (the “ripeness” issue).

In the Virginia case, there is another variation on the jurisdictional issue: does a state have any authority to try to stop the federal government from passing a law to regulate that state’s citizens?  Anticipating that Congress would pass the new health care law, including the insurance mandate, Virginia’s legislature passed a law declaring that none of its citizens could be required to buy health insurance.  Thus, the Fourth Circuit, in at least the combined U.S.-Virginia case, may have to decide whether the new federal law takes precedence over Virginia’s state law.

Recommended Citation: Lyle Denniston, Health care challenges: Round 2, SCOTUSblog (May. 9, 2011, 11:25 AM),