These judges will render a ruling that no one will remember (or care about) a year or so from now when the United States Supreme Court renders the final verdict.The trio of judges -- we don't yet know who they are or, more politically, which presidents appointed them -- will hear 40 minutes or so of oral argument in both Virginia v. Sebelius (in which a federal trial judge struck down the law's "individual mandate" provision) and in Liberty University v. Geithner, (in which another federal trial judge upheld the same provision). They will hear about the Commerce Clause. And the Necessary and Proper Clause. And the First Amendment. About standing and ripeness. And about the indefatigable Wickard v. Fillburn. I will lay you even money we even get the "broccoli mandate" line a time or two.
Those judges will, in short, hear in person what they (and we) all have heard so many times before about the legal dimensions of the contentious health care law. And then they will render a ruling that no one will remember (or care about) a year or so from now when the United States Supreme Court renders the final verdict. In fact, we will almost certainly see a circuit-court split about the Care Act along the lines of the split between Virginia-based trial judges that is the focus of Tuesday's oral argument. It's a tough job, being a federal appeals court judge. But someone's got to do it.
When it comes to this law, the 4th Circuit panel may choose from the philosophy of U.S. District Judge Henry Hudson, an appointee of George W. Bush, who declared that the law violates federal constitutional authority because it compels people to purchase a product (i.e. health insurance). Or the Tuesday's judges may choose from the philosophy of U.S. District Judge Norman Moon, an appointee of Bill Clinton, who declared the law valid because it is a rational attempt by federal legislators to address a huge national economic factor. Judge Hudson ruled federal law can't regulate inactivity. Judge Moon said everyone acts on health care even when they don't buy insurance. You say tomotoe. I say tomatah.
Or the Richmond-based judges may go off in an entirely different direction, bound as they are not to the trial judges below but to their own perceptions of Supreme Court precedent. The general idea behind this intermediate level of review is to winnow out the weakest rationales offered up by the trial court judges and then to refine the contours of a case for High Court review. Since judges Hudson and Moon cannot both be right about the Affordable Care Act, the 4th Circuit will have to choose between them. Right or wrong, when the 4th Circuit does this it will have accomplished its generally thankless task.
And, right or wrong, you can bet that the bloviation Tuesday morning (before the lawyers even have finished their pas-de-deuxs, I reckon) will have to do mostly with the composition of the panel which is selected (at random) to hear this case. Two Republicans and a Democratic appointee? Two Democrats and a Republican? A sweep of all for one side or the other? It pains me to partisanize things in such a manner, but the fact is that Republican appointees have generally struck down the measure and Democratic appointees have generally upheld it. That's why, after all, our Senate remains unwilling and unable to completely fill the federal benches.
That's not to say that these coming oral arguments, much less the ruling they spawn, are just filler until the justices get involved. The Justice Department has assigned its star orator, Neal Katyal, the acting Solicitor General of the United States, to lead the argument Tuesday. With all due respect to the appellate attorneys who otherwise would have handled this argument, this is the equivalent of the Boston Red Sox sending their star pitcher down to the minor leagues, to the Pawtucket Red Sox, to make a start in Game 7 of a playoff series. And the clear signal here is that the federal government, win or lose, doesn't want to wait until the Supreme Court argument here to have its best at court. You can understand that, can't you?
I'll have more later in the week, after the arguments, which will be posted in audio form online at the 4th Circuit's website at or after 2 p.m. EDT Tuesday. In the meantime, here is a great online resource for merit and amici briefs and the like. Hey, 4th-Circuit administrator, are you sure you have enough servers?
Image credit: Wikimedia Commons
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