Appeals Court Ready to Consider Challenge to Obama Health Law

stethoscope and pen resting on a sheet of medical lab test results, with patient file and x-ray or mri film (Michael McCloskey 2007)

RICHMOND, Va. -- A federal appellate court on Tuesday will hear arguments for the first time over President Obama's health care overhaul and move the national debate over the law's constitutionality one step closer to resolution.

A couple dozen legal challenges to the controversial law are pending across the country but the 4th Circuit U.S. Court of Appeals in Richmond, Va., will be the first appellate court to hear arguments in a pair of cases. Depending on how quickly the judges issue their rulings -- and the 4th Circuit is well known in legal circles for its speedy ways -- these cases could also become the first to make it to the Supreme Court.

The headline case is the suit brought by Virginia Attorney General Ken Cuccinelli who argues that the requirement in the law that individuals buy private insurance or be enrolled in a government program is unconstitutional.

In a December ruling that sparked national headlines and put the White House on the defensive, U.S. District Court Judge Henry Hudson invalidated the so-called "individual mandate" concluding that is was an unchecked expansion of congressional power.

"At its core, this dispute is not simply about regulating the business of insurance-or crafting a scheme of universal health insurance coverage-it's about an individual's right to choose to participate," Hudson wrote.

The ruling was an unquestionable victory for Cuccinelli but it only struck down the individual mandate. A January decision in another high-profile case from Florida fully invalidated President Obama's signature domestic achievement. It's an outcome Cuccinelli would like to see in his case now before the 4th Circuit.

"It is as obvious as any such matter can ever be that (the federal law) would not have been enacted without the unconstitutional mandate and penalty...(it) should have been declared unconstitutional in its entirety," Virginia Solicitor General Duncan Getchell wrote in a court filing on behalf of Cuccinelli and the commonwealth.

The primary appeal comes from the Obama administration, which is seeking to have Hudson's ruling overturned in its favor, and the law, titled the Patient Protection and Affordable Care Act, upheld.

"The Affordable Care Act addressed problems in the national health care system that states individually have proven unable to solve effectively," wrote acting Solicitor General Neal Katyal.

In a sign of how much importance the government views this case, Katyal will argue before the judges on Tuesday. It is rare for the solicitor general to argue cases outside the Supreme Court. Elena Kagan, now a Supreme Court justice, never did it during her stint as the government's leading advocate and her interim replacement, Katyal, has only done so a couple of times.

A key argument made in defense of the health care law is that Virginia lacks the standing to sue over the law. Katyal wrote that the mandatory insurance provision of the law "applies only to individuals, not to the commonwealth."

Virginia's lawyers have argued that the enforcement of the law would violate a measure passed by its legislature banning such insurance requirements.

The briefs also go back and forth over the constitutional issues now familiar to anyone who has watched the legal fight over the past 14 months. Each side claims fidelity to Supreme Court precedents when it comes to the law's reach (or overreach) under the Commerce and Necessary and Proper Clauses. These disputes largely center on the ability of the government to regulate "inactivity" or a person's decision not to do something: buy health insurance.

There's also discussion of whether the law's use of a "penalty" properly fits under the Constitution's taxing authority given to the federal government.

The Cuccinelli lawsuit will be the second one heard on Tuesday. The same three-judge panel will first hear an appeal from Liberty University, which lost its case before another federal judge in Virginia a couple of weeks before Hudson's ruling late last year.

Then-White House Press Secretary Robert Gibbs repeatedly referenced the Liberty case when he was peppered with questions from reporters about the lower court ruling against the law.

"One hundred and fifteen miles away, the Western District court of Virginia ruled ... to uphold the same provision that the Eastern District and its judge had ruled against," Gibbs said, trying to tamp down the implications of Hudson's ruling.

Liberty's case makes three primary arguments only one of which mirrors the complaints lodged by Virginia. Each suit challenges the individual mandate but Liberty also goes after the law's employer mandate, which penalizes companies with at least 50 workers who don't offer government-approved insurance options to its employees.

Liberty Law School Dean Mathew Staver says the law forces employers to have plans in place by 2014 that offer coverage "regardless of whether such coverage provides health care services that are necessary or desirable for Liberty's employees, affordable for Liberty or its employees or compatible with Liberty and its employees' Christian values."

In an interview with Fox News, Staver, who will argue the case Tuesday, decried the law's language permitting insurance plans to cover abortions. "In this particular health care law, when the exchanges are created there's nothing that prohibits abortion funding. In fact, the government has never denied that there will be no abortion funding."

Staver also argues the law impermissibly favors certain religious groups, such as the Amish, who are exempted from participation.

Katyal will also argue on behalf of the government in the Liberty case and defends the lower court's rejection of Liberty's religious arguments. As for the school's other constitutional objections, Katyal said Liberty's "rhetoric does not concern the limits of the Commerce Clause, but rather the scope of governmental authority generally, whether state or federal. In the guise of a commerce power argument, they assert an infringement of their freedom of contract. Such economic due process claims, however, ... have no merit here."