Argument was held on May 10, 2011 in the United States Court of Appeals for the Fourth Circuit in Liberty University, Inc. v. Geithner and Commonwealth of Virginia v. Sibelius. At issue were challenges to the Patient Protection and Affordable Care Act (ACA). In Liberty University, Judge Moon of the Western District of Virginia rejected contentions that the ACA impinged on religious freedom and exceeded Congress’s power under the Commerce Clause. In Virginia v. Sibelius, Judge Hudson of the Eastern District of Virginia declared ACA’s mandate that individuals obtain health insurance or pay a penalty unconstitutional.
In accord with Fourth Circuit practice, the composition of the panel was not disclosed until this morning. The Panel consisted of the Hon. Diana Gribbon Motz (presiding), appointed by President Clinton in 1994, and the Hon. Andre Davis and the Hon. James A. Wynn, Jr., appointed by President Obama. Judge Davis previously served as a federal district court judge in Maryland; Judges Motz and Wynn served on the intermediate courts of appeal in Maryland and North Carolina respectively. All the judges had obviously given the cases a great deal of study and participated actively in the questioning which dominated the arguments.
Liberty University was argued first and the argument focused primarily on the merits of the Commerce Clause issues. Mathew D. Staver, Liberty Counsel, argued for the appellants. Questions during his argument, and to a lesser extent during the government’s, focused on how to draw the line between what the federal government can force a person to do affirmatively versus what it can prohibit a person from doing. Although it is always dangerous to draw conclusions from questions from the Bench, Judge Davis’s questions strongly suggested that he was inclined to view the mandate as a legitimate exercise of Congressional power. Judge Motz seemed troubled by the scope of Congressional power suggested by the government’s position.
In contrast to Liberty University, the Virginia v. Sibelius oral argument focused on whether the Commonwealth of Virginia had standing to sue the federal government to invalidate the individual mandate. The Commonwealth brought suit based on a statute passed by the Virginia legislature to the effect that no citizen of the Commonwealth could be required to purchase health insurance. The court seemed concerned both with the circumstances under which a state may sue the federal government generally and with whether in this case the Commonwealth had attempted to “manufacture” standing by deliberately putting its own statute in conflict with a federal law for the purpose of filing a lawsuit.
Oral argument on the constitutionality of the ACA will be heard in the Sixth Circuit on June 1 and in the Eleventh Circuit on June 8, 2011. The panel in the Sixth Circuit has already been announced. It will consist of Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), sitting by designation. Judge Martin is the most senior active judge on the circuit; he was appointed by President Carter in 1979. Judge Sutton was appointed by President George W. Bush and was once a law clerk to Justice Scalia; he has served on the circuit since 2003. Judge Graham was appointed by President Reagan in 1986; he took senior status in 2004.