The 4th U.S. Circuit Court of Appeals seems poised to reject Virginia’s challenge to the constitutionality of the individual mandate in the Affordable Care Act, observers noted after oral arguments at the court on May 10.

In a press conference after the arguments, both Ron Pollack, executive director of Families USA, and Walter Dellinger, a constitutional scholar, said that they believed that the court’s three appellate judges would find that the state does not have standing to proceed with its case against the federal government.

Virginia Attorney General Ken Cuccinelli (R), filed the state’s challenge soon after the Affordable Care Act (ACA) was enacted, claiming that the federal government did not have the legal authority to require individual citizens to buy health insurance. He cited a new Virginia statute revoking the so-called individual mandate as the basis for his claim, saying that the federal government could not broach the state’s sovereignty on that issue. A district court agreed; the federal government appealed.

The three judges, who were randomly selected from the 4th Circuit bench to hear the case, seemed to "disparage" Mr. Cuccinelli’s reasoning that the state had standing, Mr. Pollack said.

Mr. Dellinger, a former U.S. Solicitor General, agreed that the judges seemed dubious of Virginia’s claims to sovereignty on this issue. If the court agreed with Mr. Cuccinelli’s arguments, the judges said, then states could pass laws refusing to allow its residents to participate in Social Security or the Selective Service System, said Mr. Dellinger, who currently leads Harvard Law School’s Supreme Court and Appellate Litigation Clinic. "The court saw no limit whatsoever on the challenges that could be lodged in federal court."

Mr. Cuccinelli said that he viewed the situation differently. In a separate press conference, he said that the federal government was making a bid for "unlimited authority," and that "the questions from the panel today indicated the judges struggled with this unprecedented exercise of authority."

The Virginia attorney general added that he continued to believe that the federal government could not override state laws. "That is not how our system of government is set up. The founders set it up so the states were a check on potentially overreaching federal authority," he said.

In the opinion of both Mr. Dellinger and Mr. Pollack, if the appellate panel ruled against the Virginia challenge, it would put all the state suits filed to this point to rest. "I do believe that the Attorney General of Virginia will not have a role in court after this, nor will the other state attorney generals," Mr. Dellinger said.

Mr. Cuccinelli, however, said he expected to continue his battle. "We hope to hear from the 4th Circuit sometime this summer. Then, we hope to move on to the Supreme Court," he said.

The second case heard May 10 by the appeals court, Liberty University vs. Timothy Geithner, may proceed, however, according to Mr. Dellinger. That appeal is more focused on the merits of the case – basically whether Congress is regulating activity or inactivity when it is requiring purchase of insurance or payment of a penalty, he said.

05/10/11