The Obama administration has lucked out in Virginia. A three-judge panel of U.S. Court of Appeals for the Fourth Circuit will hear arguments Tuesday morning from plaintiffs challenging the constitutionality of the health care reform law Congress passed law last year. And all three of those judges — selected randomly by computer — were appointed by Democratic Presidents.
The political composition of the panel is crucial — thus far, in lower court rulings, judges appointed by Democrats have all upheld the law while Republican-appointed judges have stricken parts, or all of the law on constitutional grounds.
This was by no means a likely outcome. Though the conservative-leaning court has become more liberal since Obama took office, the odds of drawing an all-Dem panel are still quite low — about 20 percent.
Following a decision by the panel, the losing side can request that the case be reheard by the entire appeals court en banc. Those requests are granted infrequently, in the discretion of the court, but one factor the court considers is the legal significance of the case, and the constitutionality of health care reform is rather significant.
Oral arguments begin as the politics of repealing the law outright have ebbed on Capitol Hill. The top Republican on the powerful House Ways and Means committee has accepted that GOP efforts to repeal the law are “dead” in the current legislative environment. And recently, some of the most powerful Republicans in Washington have acknowledged that the GOP would like to turn Medicare into a program that mimics the health care reform law in key ways.
The panel will hear two suits Tuesday — one brought by Liberty University, challenging the constitutionality of law’s individual and employer mandates, and a second brought by the state of Virginia, challenging the individual mandate on the grounds that it conflicts with state law, and violates state’s rights.
Lawyers representing the Obama administration are seeking to have the suits thrown out for lack of standing, or, failing that, dismissed on the grounds that the Constitution’s commerce clause gives Congress broad authority to regulate the health insurance market.
In the Liberty case, a lower court judge upheld the law’s constitutionality, while a different district court judge sided with Virginia and ruled that the law’s individual mandate exceeded Congress’ commerce clause powers. That judge upheld the rest of the law.
The judges selected today are Obama nominees James A. Wynn, Jr and Andre M. Davis, and Clinton nominee Diana Gribbon Motz.
