"I'm resting my claim on my statute." - Va. Solicitor General at oral argument on Commonwealth v. Sebelius, Record No. 11-1057, U.S. Court of Appeals for the Fourth Circuit, May 10, 2011.
This was a bad day for those challenging the individual mandate. For months we have known that two cases challenging the individual mandate of the PPACA (also known as Obamacare) would be argued back to back in the U.S. Court of Appeals for the Fourth Circuit.
The day begins with unfavorable news
The argument was to be heard before two President Obama nominees and a President Clinton nominee. The arguments are made before a three Judge panel. The parties do not know the makeup of the panel until the morning of the argument. The federal cases involving the individual mandate have been decided in favor of the party of the President that nominated the Judge, i.e. all Democratic nominees have found the individual mandate Constitutional, and all Republican nominees have found the individual mandate unconstitutional. Most observers readily state that the makeup of the panel has significant effect on the outcome.
A rocky time for Liberty U.
The matter of Liberty U. v. Geithner, Record No. 10-2347, a case where the individual mandate was upheld in the Western District of Virginia, went first. Based on reports, this portion was not very favorable to the parties challenging the individual mandate, but at least the three Judge panel acknowledged their right to reach the merits of the case.
Virginia - who are you to sue the federal government?
The panel did not allow Virginia to address the merits as the entire argument surrounded whether Virginia had a right to sue in the first place. A party that has a legal right to sue in a given case is said to have "standing." The three Judge panel did not appear at all to feel Virginia had standing to bring its case. I discuss standing here, and here, and here with regard to the individual mandate, and here with regard to redistricting. Up until today, Virginia has suggested that it has standing, in part, because Virginia passed Va. Code § 38.2-3430.1:1 stating that no citizen is required to buy health insurance. The states in the Florida case did not have such a statute (that I know of). Yet both the states in the Florida case and Virginia claim standing under a general theory of the right to sue on behalf of citizens . . . until today.
When pressed at oral argument about whether Virginia is only relying on Va. Code § 38.2-3430.1:1 or a claim of general jurisdiction, Virginia's Solicitor General said
"They [the states in the Florida case] claim there is a general jurisdiction. I'm not claiming that. I'm claim. I'm resting my claim on my statute."
All "standing" arguments for the Commonwealth of Virginia were boiled down to reliance on Va. Code § 38.2-3430.1:1. This must have been a strategic decision, and not one that is on its face incorrect. Nonetheless, I would have preferred Virginia leave the door open for other ways to establish standing. Although, Virginia may get a clean slate with the Supreme Court, if the full Fourth Circuit hears this case en banc (all of the Judges), Virginia is probably going to have to stick with that one argument.
What should we hope for . . .
Given the makeup of the Court and the perceived positions of the Judges, for those opposed to the individual mandate, the best thing we can hope for is a split decision (loss) that comes quickly, and a win in Atlanta for the appeal in the Florida case. The Supreme Court will then likely take the case, and we can fight it out there.
First hand account: Washington Examiner.
Primary sources: Recordings of oral arguments.
Click here. for my previous posts regarding the individual mandate.