Stacked Appeals Court Panel Hearing Obamacare Legal Challenge

National   |   Steven Ertelt   |   May 10, 2011   |   10:33AM   |   Richmond, VA

A majority of Americans may strongly oppose the Obamacare law that allows abortion funding and presents rationing concerns, but the computers at the U.S. Court of Appeals for the Fourth Circuit apparently love the law.

That’s because the computer system that randomly selects the panel of three judges from the appeals court to conduct oral hearings on the legal debate surrounding the law picked three judges from a evenly-divided court who are all Democrats. All three judges listening to two legal challenges today were appointed by Democrats — Judge Diana Motz, the senior member of the panel, is a Clinton appointee while Judges Andre Davis and James Wynn were appointed by Obama.

That makes it so the first appeals court hearing on Obamacare (more will come — such as the hearing in the main lawsuit filed by Florida and dozens of other states, where a federal judge sided against Obamacare) will come before a panel likely to agree with the Obama administration that the law is constitutional.

Today’s hearing, as reported yesterday, involves two legal cases. The first, filed by Liberty University, and the second, an appeal by the Obama administration of a federal judge’s decision against Obamacare in the case filed by Virginia Attorney General Ken Cuccinell.

The three judges were randomly selected by the computer months ago and have likely been reading the numerous legal briefs offered by both sides and their supporters to prepare for today’s hearing. With the partisan nature of the appointments in various cases determining how judges have ruled thus far, the expectation is the panel will vote unanimously, or at least in a 2-1 vote, to overturn the lower court’s decision. That would set up either a request for the full appeals court to rule or an appeal to the Supreme Court — where everyone on both sides of the Obamacare debate expects the final resolution the law to come.

Last year U.S. District Judge Henry Hudson ruled Congress exceeded its authority by forcing Americans to buy health insurance via the individual mandate while Virginia had passed a law barring the federal government from making its citizens buy health insurance.

The Obama administration is so concerned about the lawsuit that the pro-abortion president has dispatched acting solicitor general Neal Kumar Katyal, who normally argues before the Supreme Court, to argue for upholding Obamacare. Matthew Staver, a pro-life attorney, will argue for Liberty University, while state solicitor general E. Duncan Getchell, Jr. will present the case for Virginia.

Staver commented on the case in advance of Tuesday’s historic oral arguments: “It is the hope of many Americans that this lawsuit is a fast track to the ultimate demise of this overreaching health insurance law. This law represents an astonishing extension of the federal government into the personal and business decisions of Americans. If Obamacare should be upheld by the courts, then there are no limits on what Congress can do. I think it is clear that Congress far exceeded its authority under the Constitution.”

On June 8, in Atlanta, the 11th Circuit Court of Appeals will hear oral arguments in the Florida case where 26 states challenged Obamacare.

Matt Barber, Director of Cultural Affairs with Liberty Counsel and the Associate Dean with Liberty University School of Law, commented on the cases.

“The Obama-Pelosi-Reid triumvirate ambitiously maintains – against considerable evidence to the contrary – that Democrats’ particular brand of health care reform is so important, so unique that the U.S. government is justified – for the first time in history – in forcing every American citizen to purchase his own untenable, unsustainable and demonstratively defective product under penalty of law,” he says. “Obamacare categorically lays the groundwork for universal health care. They didn’t just sell us a lemon, they squeezed it in our eyes and said, “pay up or else.”

“This is a case of first impression. That is to say, no Supreme Court case has ever allowed the federal government to force people into the stream of commerce. Neither has the high court ever permitted the federal government to compel its citizens to buy a government-defined product. If government has the authority to force unwilling citizens to purchase health insurance, then there is simply no limit to the power this mushrooming centralized mammoth can wield,” Barber added.

Meanwhile, support  for repeal of the national health care law has rebounded after falling below 50% for the first time since it was passed by Congress in March of last year, according to a new Rasmussen Reports poll. The latest survey  shows that 57% of Likely U.S. Voters now at least somewhat favor repeal of the law. Thirty-six percent (36%) oppose repeal. The new findings include 44% who Strongly Favor repeal of the measure and 26% who are Strongly Opposed.

“Rasmussen Reports has tracked support for repeal every week since the bill became law. Prior to last week, support for repeal has ranged from a low of 50% to a high of 63%. Last week, for the first time ever, support for repeal fell below 50%,” pollster Scott Rasmussen indicates.

Eighty-seven percent (87%) of Republicans and 56% of voters not affiliated with either major party favor repeal. Sixty percent (60%) of Democrats oppose it. Fifty percent (50%) of all voters believe the health care law will be bad for the country. Thirty-two percent (32%) hold the opposite view and believe the law will be good for the nation. Four percent (4%) say it will have no impact and 13% aren’t sure.

In the Virginia case, the judge ruled on December 13 that  no court had expanded the Commerce Clause to allow the government to regulate a person’s decision not to buy a product.

“At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate,” Hudson wrote.

Recently, the U.S. Senate rejected a move by Senate Republican Leader Mitch McConnell to have the Senate approve a bill the House approved to repeal Obamacare. Senators voted along party lines with all Democrats — including three who say they are pro-life — voting against repealing the abortion-funding bill while all Republicans supported repeal.

When Congress passed the government-run health care bill, it did so without any limits on abortion funding and language mandating taxpayer financing of abortion in certain circumstances. Obama eventually issued a controversial executive order supposedly taking the abortion funding issue off the table.

However, virtually every pro-life group said it would not mitigate the abortion funding because it doesn’t have the effect of law, could be reversed in the future, and because it didn’t tackle much of the abortion funding in the bill. The Obama administration could also ignore the order and not put it in place when the health care law goes into effect.

Arizona, Tennessee, Mississippi, Missouri, and Louisiana have passed similar bills that have already been signed into law by governors in those states and several other states are expected to consider legislation in their upcoming legislative sessions. Governors in Oklahoma and Florida vetoed similar legislation.