The Obama administration received a friendly hearing for its defense of the new national healthcare law from three judges of the U.S. 4th Circuit Court of Appeals, all of whom were Democratic appointees.
By their comments and questions Tuesday, the judges signaled they were likely to uphold provisions in the law that require virtually all Americans to have health insurance by 2014 or pay a penalty.
In December, a federal district judge here became the first to strike down the new healthcare law as unconstitutional. The hearing Tuesday was the first before a federal appeals court.
Regardless of how they rule, the appellate judges are not likely to have the final word. Two other federal appeals courts are to hear arguments on the same issue in the next month, and the Supreme Court is almost certain to consider the constitutionality of the healthcare law in the year ahead.
At issue is whether Congress has the power to regulate the national health insurance market by requiring all those who can afford insurance to pay for coverage.
The Constitution gives Congress broad authority "to regulate commerce" and to "make all laws which shall be necessary and proper" to carry out that power. Citing those provisions, the administration's lawyers argued that requiring everyone to pay for insurance is necessary if insurers are required to accept all buyers.
Otherwise, said Acting Solicitor Gen. Neal Katyal, people could wait and "buy insurance on the way to the hospital."
Judge Andre Davis, an Obama appointee from Maryland, seemed to agree. Congress has the "practical power" to make the regulation work. And it is a "slam dunk" to say it is necessary for everyone to participate, he said.
Judge James Wynn Jr., another Obama appointee, said Congress saw the issue as a matter of personal responsibility. "Citizens use healthcare. Someone has to pay for it," he said.
Under the rules of the 4th Circuit, judges are picked to sit on particular cases by "a computer program designed to achieve total random selection," the court said. The third member of the panel, Judge Diana Motz of Maryland, is a President Clinton appointee.
The judges heard two cases. One was brought by Virginia Atty. Gen. Ken Cuccinelli, a Republican, who said he was acting on behalf of Virginians who did not want to buy health insurance. But his lawyer struggled to explain how the state had the legal standing to challenge the healthcare mandate, which applies to individuals.
"We have sovereign standing," said Duncan Getchell Jr., the state's solicitor general. "That gives us a ticket into federal court."
All three judges made skeptical comments and strongly hinted they would toss out Virginia's suit.
The second case was brought by Liberty University, a Christian school founded by the Rev. Jerry Falwell, and its plaintiffs include individuals who object to the healthcare law. Even Katyal agreed these plaintiffs had standing to sue.
But Liberty lawyer Mathew Staver did not fare much better. He argued that his clients were "inactive bystanders," not participants in interstate commerce. Therefore, they are beyond the reach of federal regulation, he argued.
The three judges said Congress had made the reasonable assumption that virtually everyone would need healthcare sometime in life. And very few can afford the cost of a catastrophic accident, they said.
Katyal said hospitals and taxpayers had to pay about $43 billion a year to cover the medical expenses of people who have no insurance. That adds $1,000 a year to an average family's healthcare costs, he said.