- The Washington Times - Tuesday, May 10, 2011

RICHMOND — A federal appeals panel of three Democrat-appointed federal judges heard arguments Tuesday in two cases attempting to overturn President Obama’s health care overhaul.

The 4th U.S. Circuit Court of Appeals judges drilled attorneys for both sides, but seemed skeptical during the two-hour hearing of arguments to invalidate the law made by Liberty University and the state of Virginia.

Judge Andre M. Davis described a hypothetical, but common, scenario that prompted lawmakers to reform health care in the first place: A group of young adults who lack health insurance are seriously injured in a car accident and because they lack funding, their medical expenses fall on the backs of taxpayers.

“Is it your submission that Congress has no power to address in the aggregate this example that happens all the time?” Judge Davis asked constitutional lawyer Mathew Staver, representing Liberty University.

Mr. Staver responded with the most common objection to the health care bill. To mandate individuals to purchase health insurance would be to penalize them for doing nothing — a first in the history of the U.S. government, he said. He said it would open the floodgates to unlimited federal regulations, like requiring individuals to purchase gym memberships or eat more broccoli to improve their health.

The question of whether declining to purchase health insurance qualifies as interstate commerce activity that can be regulated by the federal government dominated much of the back-and-forth in the courtroom.

In one of the cases argued Tuesday, the federal government is appealing a ruling striking down the law’s requirement that individuals buy health insurance or pay a penalty — otherwise known as the “individual mandate.” In the other case, Liberty University is appealing another judge’s ruling upholding the law.

Neal Kumar Katyal, acting solicitor general of the United States, argued that financing health insurance falls into that category because the government will end up paying the bill if individuals decline to purchase insurance. The mandate simply transfers responsibility for financing an individual’s health care onto them and off the government, he said.

Also at issue was whether Virginia has the legal standing to challenge the federal government over the individual mandate.

Judge Davis questioned whether the challenge is valid since the mandate would apply to individuals, with Judge James A. Wynn Jr. adding that an individual mandate has nothing to do with the state.

Virginia Solicitor General E. Duncan Getchell Jr., who argued the case filed by Virginia Attorney General Kenneth T. Cuccinelli II, said it does because the General Assembly passed an act earlier this year that seeks to protect the rights of Virginia residents to decide for themselves whether to purchase health insurance or remain uninsured.

“If we’re going to be a government of enumerated powers, you have to have a forum to sort those out,” Mr. Getchell said.

The panel of judges who heard the case were announced Tuesday morning. They were selected at random from the 14 on the 4th U.S. Circuit. Judge Davis and Judge Wynn were appointed by President Obama. The third judge, Judge Diana Gribbon Motz, was appointed by President Clinton.

The makeup of the panel was good news for supporters of the health care overhaul. In the five federal courts to rule on the provision so far, three judges appointed by Democrats have ruled that it is constitutional, and two judges appointed by Republicans have ruled it is unconstitutional.

Mr. Cuccinelli said he expected both sides to be aggressively questioned, as they were. He seemed to shrug his shoulders at the panel’s makeup, saying that’s how the dice fell.

Mr. Cuccinelli also said he perceived a change in the panel concerning Virginia’s standing to challenge the health care law.

“The greatest optimism I drew from today was their shift in understanding our position to challenge from when we entered the courtroom to when we left it,” he said.

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