RICHMOND, Va. – A three-judge federal appeals panel comprised of two Obama nominees and a Clinton nominee will hear arguments later this morning in two lawsuits challenging the constitutionality of the national health care law.
The makeup of the U.S. Fourth Circuit of Appeals panel is crucial, because in lower court rulings so far, Democratic judges have upheld the law while Republican judges have declared it unconstitutional.
The judges on the panel will be Obama nominees James A. Wynn, Jr and Andre M. Davis, who will sit on the panel along with Clinton nominee Diana Gribbon Motz.
According to the Fourth Circuit, the panel is chosen by "a computer program designed to achieve total random selection."
In certain cases, the entire court will rehear a case, what's referred to as en banc, but only if a majority of all active judges in the circuit agree to it. While once seen as a very conservative court, the Fourth Circuit has become more liberal over time, especially in the past few years, because Obama has been able to name four judges to the court.
In the first of the two suits, to be heard at 9:30 am, Liberty University will challenge the constitutionality of the law's mandate that forces individuals to purchase insurance or pay a fine as well the requirement that larger employers offer insurance.
After 40 minutes of oral arguments, the judges will move to the next suit, in which the state of Virginia will challenge the individual mandate as a threat to state's rights and personal liberty.
The Obama administration will seek to have the suits thrown out, arguing that the parties lack standing to sue, or dismissed on the grounds that the Commerce Clause of the U.S. Constitution grants Congress broad regulatory authority allowing them to require the purchase of health insurance.
Given the importance of the issues at stake, the Obama administration has dispatched acting solicitor general Neal Kumar Katyal to argue both cases on its behalf. Matthew Staver will be arguing for Liberty University and state solicitor general E. Duncan Getchell, Jr. will be arguing for Virginia.
At the lower court level, one federal judge dismissed the Liberty University lawsuit while another judge agreed with the state of Virginia that the health care law's individual mandate was unconstitutional.
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.