Democratic-dominated appeals panel hammers away at challengers to constitutionality of ObamaCare 

RICHMOND, Va. – A three-judge appeals court panel comprised entirely of Democratic nominees hammered away at parties challenging the constitutionality of the national health care law in oral arguments here this morning.

In its questions, the panel, made up of two judges appointed by President Obama and one by President Clinton, appeared skeptical about the merits of the arguments that the law's individual mandate represented an unprecedented extension of congressional power. In addition, they raised questions about whether the state of Virginia even had standing to challenge the law in the first place.

In the first health care suit the judges heard, Liberty University attorney Matthew Staver argued that the requirement that individuals purchase health insurance represented “inactivity,” and thus could not be regulated by Congress under the Commerce Clause.

The judges brought up prior Commerce Clause cases, including Wickard vs. Filburn, in which the Supreme Court said that a farmer couldn't grow wheat that exceeded a government quota, even if it was consumed on his own farm, and Gonzalez vs. Raich, in which the high court ruled that despite a California law allowing them to do so, individuals couldn't grow medical marijuana on their own property for their own consumption.

Judge James A. Wynn Jr., who was appointed by Obama, asked how the regulation of health insurance was different. In those prior cases, he argued, the individuals decided not to participate in the interstate market, and in this case, individuals were deciding not to participate in the health insurance market.

And judge Andre M. Davis, also an Obama appointee, followed up by asking whether, if a neighbor accepted a gift of marijuana, that was considered “activity.”

Staver responded that “commerce cannot be idleness.” In order to be regulated, he said, there had to be an activity involving a tangible commodity with an interstate market.

Davis quipped back, “You seem to be describing a 'commodity clause' rather than a Commerce Clause.”

Wynn asked whether the mandate was essential to a comprehensive regulatory scheme, to which Clinton-appointed Diana Gribbon Motz followed up, “You don't dispute that there's a broader scheme here?”

The judges raised the idea that the Necessary and Proper clause gives Congress broader authority to impose regulations, with Davis arguing that prior Supreme Court rulings look at the federal government's “practical power” and have generally been deferential to the legislature.

Yet Staver argued that the mandate couldn't be “proper” and reiterated that it exceeded Congressional power under the Commerce Clause.

Also, in response to a question about whether Congress had the power to ban trans fats, Staver said that could be allowable, but it was different to force people to eat broccoli or join a gym to be healthier.

When Neal Kumar Katyal, acting solicitor general for the Obama administration, addressed the panel, the judges seemed much more sympathetic to his arguments.

Katyal argued that the the activity being regulated was “participation in the health care market” which he described as a virtually “universal feature of human existence.” Thus, they were only regulating the financing of health care, since ultimately everybody will purchase it.

The government is “not asking people to buy something they otherwise might not buy,” Katyal said. He said the distinction between health care and insurance was “artificial.”

Motz asked whether the law could be unconstitutional under the Commerce Clause but still justified by the Necessary and Proper clause, and Katyal said yes, because the latter clause allows “extra room” to “fill in the gaps” when Congress has to act on an issue.

Wynn seemed to be embracing that argument when he said “ultimately it's about responsibility” and the government making people more responsible for decisions that will have broader impact.

Of the responsibility argument, Motz asked, “Doesn't that leave you open to the argument that the federal government is big brother?”

Katyal said it wasn't, since, if people don't get insurance and show up at an emergency room, others will have to pay.

The Liberty case ended up taking twice as much time as expected, roughly an hour and a half. Since the judges asked many of the questions surrounding the merits of the case during the Liberty arguments, by the time the state of Virginia case came up, it mostly focused on whether or not the state even had standing to sue.

Katyal argued that they did not. While states had the ability to sue when their sovereignty is directly affected, he said, they can't sue the federal government on behalf of their citizens. Only individuals can sue the government claiming individual harm.

Virginia is unique, because after the passage of the national health care law, the state passed a statute protecting its citizens from the individual mandate.

Yet Katyal said if that were a way to gain standing, then states could challenge the Iraq or Afghanistan wars or Social Security simply by passing a statute.

Davis seemed to agree, saying, “How on earth can there by standing if any state can pass a statute?”

Wynn was slightly more sympathetic to Virginia, noting that the statute had to go through the legislative process.

When Virginia's solicitor general E. Duncan Getchell, Jr appeared, both Motz and Davis challenged him on whether there was any point to the law other than to establish standing.

 “So a state can challenge any federal statute as long as the state passes its own law?” Motz asked.

Getchell said yes. When asked to respond to the example of a state passing a law saying its citizens didn't have to participate in the Social Security system, he responded that, “(the state) would have standing to lose.”

No matter what the outcome at the appeals court level, the losing parties are expected to challenge the ruling, and the issue is widely expected to be decided ultimately by the U.S. Supreme Court.

On June 8th in Atlanta, the 11th Circuit Court of Appeals will hear oral arguments in separate lawsuit challenging the constitutionality of the mandate, this one brought by 26 states led by Florida.

Motz even alluded to this at one point. Asking Katyal to clarify one legal point, Motz said, “It's a question you're going to get, I dare say, at another court at another time."

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