- The Washington Times - Thursday, September 8, 2011

A panel of three federal judges on Thursday dismissed two challenges to President Obama’s landmark health care law — including one spearheaded by Virginia Attorney General Kenneth Cuccinelli — on procedural grounds, becoming the third appeals court to rule on a case likely headed to the highest court in the land.

In contrast to the other recent court rulings, the judges in the U.S. Court of Appeals for the 4th Circuit in Richmond didn’t rule on the merits of the law. Instead, they took issue with the standing of Mr. Cuccinelli and Lynchburg, Va.-based Liberty University to challenge the law. Some 28 states have filed legal action to block the law, citing in particular the law’s requirement that individuals must buy health insurance or pay a penalty.

“Because we hold that Virginia lacks standing, we cannot reach the question of whether the Constitution authorizes Congress to enact the individual mandate,” wrote Judge Diana Gribbon Motz. The three judges on the panel were all appointed by Democrats, including two by Mr. Obama.

Because the mandate applies only to individuals — and not to the state as a whole — the court concluded that it cannot be challenged by the state. “A state has no interest in the rights of its individual citizens sufficient to justify such an invasion of federal sovereignty,” Judge Motz wrote.

The judges made a slightly different procedural argument against Liberty University’s lawsuit, ruling that the university’s lawsuit came too soon. Invoking a law known as the Anti-Injunction Act that bars lawsuits seeking to block collection of a tax, the court said the mandate was effectively a tax and thus can’t be challenged prior to its effective date of January 2014.

Until then, it’s up to Congress to weigh whether the mandate will be burdensome on taxpayers as Mr. Cuccinelli and Liberty University allege, Judge Motz wrote.

“We recognize ‘that Congress has imposed’ a potentially ‘harsh regime’ on some taxpayers,” she wrote. “However … the question of whether these concerns ‘merit consideration’ is a matter for Congress to weigh.”

Judge Andre Davis was the only one to write a dissent, and just for the Liberty University lawsuit. He wrote that the university does have standing to sue — and that the court should have ruled in favor of the constitutionality of the individual mandate.

Mr. Cuccinelli said he was disappointed that the courts didn’t rule on the merits of his challenge. He called the judges “dismissive” of a bill the Virginia General Assembly enacted last year opposing the individual mandate.

“In rejecting Virginia’s right to bring the action, the court said that allowing such suits would allow the states to serve as ‘roving constitutional watchdogs,’ ” he said. “This was exactly a role that the Founding Fathers planned for the states to have.”

The White House lauded the decisions, which gave it a boost in the ongoing battle over the legal fate of Mr. Obama’s signature domestic achievement. “This decision is another victory for the Affordable Care Act and the tens of millions of Americans already benefiting from this landmark law,” said spokeswoman Stephanie Cutter.

The Obama administration was appealing a ruling issued by District Court Judge Henry E. Hudson in December. Judge Hudson became the first judge to rule against the Affordable Care Act, upholding Mr. Cuccinelli’s contention that the individual mandate is an overreach of the power given to Congress to regulate interstate commerce.

“An individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause,” Judge Hudson wrote at the time.

Stephen Presser, a professor at the Northwestern School of Law, called Thursday’s rulings a “not particularly important sideshow” that just points toward where the case will ultimately be decided — at the Supreme Court.

“It’s an appropriate case to move to the Supreme Court when it’s a tremendously important constitutional issue or when there’s significant disagreement between the district and appeals courts,” he said. “This meets both criteria.”

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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