Appeals court: Is health-care reform like broccoli?

Attorneys challenging Obama's health-care reform law said that Congress cannot 'force us to buy a private product and say it is for our own good,' whether health insurance or broccoli.

By , Staff writer

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    Virginia Attorney General Kenneth Cuccinelli, shown here in December 2010, argued Tuesday in federal circuit court, "The federal government [claims] unlimited authority in your lives, including the authority to regulate – i.e., dictate – your decisions, not merely your actions."
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The Obama administration faced a mostly-friendly federal appeals court panel on Tuesday while urging the judges to uphold the constitutionality of President Obama’s health care reform law.

The three judges, two Obama appointees and a Clinton appointee, engaged in an active and probing examination of a pair of lawsuits charging that Congress overstepped its authority under the Constitution’s commerce clause when it passed the Patient Protection and Affordable Care Act.

The controversial health care law includes the requirement that all Americans purchase a government-approved level of health insurance or pay a fine.

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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. Everyone in the US at some point will require medical care, Katyal argued.

At a press conference after the hearing, Virginia Attorney General Kenneth Cuccinelli, who argued against the law, said that his argument was ultimately about liberty, not health care. “The federal government argued in court today that it should have unlimited authority in your lives, including the authority to regulate – i.e., dictate – your decisions, not merely your actions.”

Obama's health care law at the Fourth Circuit

Opponents of the law say the mandate exceeds Congress’s power to regulate interstate commerce and marks the first time the government has ordered US citizens to purchase a particular product or service.

Supporters of the law say the mandate is an essential feature of a comprehensive program designed to lower health care costs nationwide.

During more than two hours of argument at the Richmond-based Fourth Circuit Court of Appeals, the lawyers and judges sparred over fundamental points of constitutional law. Comparisons were drawn to earlier Supreme Court precedents endorsing federal power to dictate the home consumption of wheat on a family farm and to outlaw the private use of home-grown medical marijuana.

If the sweep of federal regulatory power extends to those areas, Katyal argued, it also encompasses a comprehensive effort to reform the national health insurance market.

The two cases heard by the appeals court stem from decisions by federal courts in Virginia. In the case filed by Liberty University, a federal judge upheld the law’s constitutionality. In the other suit, filed by Mr. Cuccinelli on behalf of the Commonwealth of Virginia, a different federal judge struck it down.

Is Congress regulating inactivity?

Mathew Staver, a lawyer representing Liberty University, told the judges that Congress’s power under the commerce clause is limited to regulating economic activities – like growing wheat or growing and using your own marijuana.

In contrast, he said, the individual mandate penalizes Americans for their inactivity – their failure to purchase health insurance.

“The Constitution doesn’t talk about activity,” Judge Diana Motz responded.

“I think it is inherent when you understand what commerce is,” the lawyer replied. He said the federal government has never before extended its authority over interstate commerce to regulate idleness.

“If you removed activity as a component there would be no limit to what Congress could do,” he said. Congress could order Americans to purchase and eat broccoli because it might help reduce national health care costs, he said.

Cuccinelli echoed the same point in his press conference.

“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 Virginia. "The government’s power to intrude on our lives ‘for our own good’ will be virtually unlimited.”

Katyal urged the judges to reject arguments made by opposing lawyers that the individual mandate was an attempt to regulate inactivity rather than economic activity.

“Congress is regulating activity – the activity is participation in the health care markets,” he said.

What is being regulated, he said, is the method of payment for a service – health insurance – that everyone will eventually need and use.

In addition to Judge Motz, a Clinton appointee, the two other judges on the panel, Andre Davis and James Wynn, were both appointed by President Obama.

31 cases attack the health-care reform law

After the hearing, Cuccinelli declined to predict how the judges might rule. He said he is hopeful a decision may be announced this summer.

If the Fourth Circuit rules against him, he said he would appeal to the US Supreme Court.

The two cases are among five high-profile cases challenging the health care reform law that are currently in the federal appeals courts.

In addition to the two Fourth Circuit cases, arguments are expected in early June at the Atlanta-based Eleventh Circuit and the Cincinnati-based Sixth Circuit. A case is also pending at the federal appeals court in Washington, D.C.

Overall, Cuccinelli said, 31 cases have been filed in various federal courts attacking the health care reform law.

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