Case faces Obama-friendly court in 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.
In Richmond, the 4th U.S. Circuit Court of Appealsjudges peppered attorneys for both sides with intense questioning, but seemed somewhat skeptical of the arguments made to invalidate so-called ObamaCare by the Commonwealth of Virginia and Liberty University.
Oral arguments for both cases, with Liberty University’s being held first, were held back-to-back in front of a randomly selected panel of three judges – who just happened to be appointed by Democratic presidents, two by President Obama.
Lawyers for the Commonwealth of Virginia were questioned whether the state had a right to sue the federal government and suggested that if Virginia can sue over this so can a state opposed to the war in Iraq.
The first case against the federal health care law – Obama’s signature piece of legislation – passed in March 2010 was brought by Virginia’s attorney general Ken Cuccinelli.
In another disturbing sign for supporters of the suit, the judges also questioned Liberty University’s claim that not entering the health insurance market is inactivity that cannot be regulated under the Commerce Clause.
Running overtime with two hours of arguments, the judges never brought up what to do if they uphold the ruling that the individual mandate is unconstitutional. While this is not a sure sign that the panel could rule against the law, it’s a hint that it was not foremost on the judges’ minds during the discussions Tuesday.
But it’s the so-called ‘vegetable question’ – usually broccoli – that continues to be a major obstacle for argument by ObamaCare supporters. In that if it is OK for the United States Congress to require Americans to buy health insurance then it can go to compel them the buy vegetables because they are good for your health, or a gym membership or sunscreen lotion.
“If we cross the constitutional line with health care now – where the government can force us to buy a private product and say it is for our own good – then we have given the government the power to force us to buy other private products, such as cars, gym memberships, or even asparagus,” said lawyers for Virginia. “The government’s power to intrude on our lives ‘for our own good’ will be virtually unlimited.”
“If they can do it for health insurance, they can do it for anything else as well,” Cuccinelli told a packed press conference after the hearings. “The insurance mandate penalizes people for not engaging in commerce. It does not regulate existing commerce; it punishes people who choose not to enter commerce.”
“If we cross this constitutional line with health care now, where the government can force us to buy a private product and say it is for our own good of course, then we will have given the government the power to force us to buy other private products such as cars, gym memberships or today’s chosen vegetable of discussion- broccoli,” Cuccinelli told the press echoing his lawyer’s earlier courtroom arguments.
Acting US Solicitor General Neal Katyal defended the health-care mandate as an expense all Americans would incur anyway. “We can’t know when we might be hit by a bus or struck with cancer,” Mr. Katyal told the judges.
Katayl argued the government is only seeking to regulate something all Americans already participate in – the health care system as a whole which seemed to resonate with Judge James A. Wynn Jr. who said: “…the word that keeps coming to my mind is ‘responsibility’. But ultimately, in the aggregate citizens use health care and somebody has to pay for it.”
But whether Congress has the power to order every American to pay for their health insurance seemed to be an unsettled question for Judge Diana Gribbon Motz who sounded cautious about the broader implications.
“The Supreme Court has obviously in recent years been very concerned about limits. And aren’t we just opening this up for unlimited Congressional power here? Judge Gribbon Motz asked.
This is the line Cuccinelli and his team and Liberty University’s attorney Mat Staver argued would be historic – and not in a good way.
“It is an unprecedented power grab by the federal government and I think it is clearly unconstitutional,” Staver said after the hearing.
No matter what the three Democratic-appointed judges of the 4th Circuit decide likely later this summer, it is a given the case will make its way to the United States Supreme Court making the constitutionality of ObamaCare an issue for the 2012 election.