Two Virginia cases, reaching opposite conclusions about the law’s legality, are scheduled for separate oral arguments before three-judge panels May 10 at the federal courthouse in Richmond, Va. The cases are Virginia v. Sebelius, in which Hudson struck down the individual mandate, and Liberty University v. Geithner, in which U.S. District Judge Norman Moon upheld the law in its entirety.
In all, four cases in which judges directly ruled on the law’s constitutionality are scheduled for oral arguments in circuit courts within a month’s time. In addition to the Virginia cases, the 6th U.S. Circuit Court of Appeals in Cincinnati is scheduled on June 1 to hear arguments in Thomas More Law Center v. Obama, which upheld the law, and the 11th Circuit in Atlanta is scheduled on June 7 to do the same with Florida v. HHS, which struck down the ACA in its entirety.
All four cases were filed in district courts March 23, 2010—the same day President Barack Obama signed the Affordable Care Act into law—and all four have been placed on expedited schedules in the appeals courts.
The U.S. Justice Department has been tracking a much wider group of lawsuits. By its accounting, a total of 31 federal lawsuits attacking the ACA have been filed. Of them, nine are pending on appeal, nine are pending in local district courts, and 13 were dismissed and not appealed. That diversity makes it difficult to pin down exactly when the U.S. Supreme Court—which experts on all sides of the issue agree will be the ultimate arbiter of the law’s legality—will take up the case.
Peter Leibold, a lawyer who has studied the cases and written about them as executive vice president and CEO of the American Health Lawyers Association, said his best guess is the case is likely to go in front of the Supreme Court for oral arguments during the court session that begins in October 2012.
Critics of the law have been eager to see a quicker resolution to the issue in the courts, while the Obama administration has been accused of dragging its feet in court while rapidly working to implement the law in the states.
The Supreme Court last month declined a request from Virginia officials to circumvent the appeals process and take up the appeal of Hudson’s opinion immediately—a decision that was applauded by the Obama administration.
Much of the litigation over the law has centered on the question of whether a person’s decision not to buy private insurance is considered an economic activity that Congress can regulate.
Proponents of the law say that almost every American will be hospitalized someday, but if they don’t have insurance, those billions in collective costs for the uninsured will be shifted to paying customers. Opponents argue the federal government has no constitutional authority to force anyone to purchase a product they don’t want, regardless of how well-intentioned the idea.
The Obama administration has said that the individual mandate was necessary because of the ACA’s requirement that insurance companies offer coverage at standardized prices to anyone who applies for it.
America’s Health Insurance Plans, a trade group for the industry, filed a friend-of-the-court brief in the appeal of the Virginia decision that stripped the mandate from the law. Without it, AHIP argues, consumers would wait until they got sick before getting coverage, which would force insurers to significantly raise rates for everyone.