Health Care Challenges Reach Next Level in Climb Toward Supreme Court

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Richard A. Lipski / For The Washington Post via Getty Images

Two legal challenges to the Affordable Care Act will be argued in a Virginia courtroom Tuesday morning, moving them one step closer to the U.S. Supreme Court. The first, filed by the Commonwealth of Virginia, has already scored a victory at the district court level. Another, filed by Liberty University, was struck down. Both decisions were appealed and a three-judge panel of the Fourth Circuit will hear arguments in back-to-back sessions Tuesday.

The original filing parties – Virginia and Liberty U. – argue that the ACA’s individual mandate violates the U.S. Constitution. The federal government, represented in court today by Acting Solicitor General Neal Kumar Katyal, says the Constitution’s Commerce Clause gives it the authority to require Americans to have health insurance. For more background on the issue, see scotusblog.

It’s impossible to predict how the panel will rule. The only clues we have so far are the names of the judges chosen at random to sit on today’s panel. Here’s who will be ruling on these cases:

Honorable Diana Gribbon Motz – presiding
Honorable Andre M. Davis
Honorable James A. Wynn, Jr.

Motz, appointed to the appeals court by Bill Clinton in 1994, is a proud Democrat. Davis was appointed to be a district court judge by Clinton and appointed to the Fourth Circuit by Barack Obama. Wynn was appointed by Obama.

Virginia Attorney General Ken Cuccinelli, a champion of his state’s case against the ACA, had wanted to bypass the Fourth Circuit entirely and go straight to the Supreme Court. His request was denied.

In addition to the judges themselves, court watchers will also study how and what questions the judges ask to gain insight into which way they are leaning. The appellate court decision is important, of course, but the ultimate fate of the individual mandate – and maybe the ACA itself – will be determined by the U.S. Supreme Court sometime next year. In the meantime, many other cases are ongoing. See a Department of Justice wrap up here.

As for Tuesday’s hearings, in addition to the judges themselves, there are some other things to look for. ACA Litigation Blog lists these, which I agree are important: (The blog post on today’s proceedings is worth reading in full.)

* How much time is spent on severability?

* How much time is spent on standing?

* Which government argument does the Court focus on?

* How much do the judges ask about a “limiting principle”?

Seating inside the courtroom is very limited and no electronic transmission of the proceedings is allowed, so don’t expect much news until midday.