AFP President Tim Phillips and Tito Munoz lead a rally of Cuccinelli supporters next to the courthouse in Richmond
A three judge panel from The Eastern Circuit Federal Court of Appeals heard arguments today on two Obamacare lawsuits. Commonwealth of Virginia vs. Sebelius and Liberty University vs. Geithner arguments were heard this morning by two Obama (James A. Wynn, Jr and Andre M. Davis) and one Clinton (Diana Gribbon Motz) appointees. The Obama administration dispatched acting solicitor general Neal Kumar Katyal to argue both cases on its behalf. Matthew Staver argued for Liberty University and state solicitor general E. Duncan Getchell, Jr. argued for Virginia.
The panel chose to focus on the merit of the case with Staver and primarily focused on the question of Virginia’s standing to file suit with Getchell. The panel challenged whether Getchell believed the Healthcare Freedom Act, a law passed by a bipartisan General Assembly which prohibits the individual health insurance mandate created standing. Getchell reluctantly agreed that this was indeed his premise but because he didn’t want to harm the position of the plaintiffs in the Florida lawsuit, also believed that the Commonwealth very likely maintained standing without it.
Staver, left with the heavy lifting in arguing the merit of the challenge on the unconstitutionality of the mandate was up to the task. The judges were intent on the question of whether or not opting to not purchase government approved healthcare insurance is an activity. They referenced Wickard and Raiche repeatedly to which the Liberty counselor countered that Wickard did not apply since the federal government did not mandate that Wickard grow or eat wheat. As for the “activity” argument, Staver was brilliant in his response when Judge Davis asked if there should be some judicial formula to define activity.
I think it is critical to having some kind of definable end or understanding of the reach of the commerce clause. If you remove activity as a requirement or as a significant component, then there would be no definable limits on the commerce clause. It would turn the federal government into a police power intruding on to the individual activities of the states and there would literally be no reach or end or limit to what congress could do under Article I.
In any event and regardless of the eventual decision, this is just another mile post on the way to the Supreme Court but it is interesting to hear this liberal panel let their presuppositions leak through like Judge Wynn’s tear jerking hypothetical about four uninsured twenty-something young men from Virginia on a road trip to Maryland have a horrible accident and incur huge medical bills on their way to complete recoveries which not only justifies the necessity of Obamacare but declares that the necessary and proper clause and not the commerce clause may deem it constitutional, he claims that it is unquestionably necessary and the only question is whether or not it is proper.
You can hear the arguments here