HCR -- How Many Judges Can Dance on the Head of a Pin?

By John Ballard

Legal challenges to PPACA are making their torturous ways through the courts.
Dr. Timothy Jost, with commendable restraint, spells out the icky details.
He's been watching and analyzing this legislation from the start. 
(If you're drowsy read this later.)

...the importance of this case, the first case on the constitutionality of the ACA to be heard by an appellate court, cannot be overestimated. That the court is hearing two cases in which the lower courts reached opposite conclusions, and that one is brought by a state, enhances the significance of the occasion. The Virginia case drew twenty-five amicus briefs and the Liberty University case ten, including briefs from state officials, members of Congress, organizations representing providers and persons with chronic diseases, law professors, and advocacy groups � conservative and progressive.

[...]   The Liberty University Case. The oral argument in the cases, scheduled to last forty minutes per case, lasted for over two hours. Mr. Staver began the argument. He attempted to wind up as his time drew to a close, but Judge Motz, who headed the panel as its most senior judge, encouraged him to continue as long as the panel had questions, cautioning him that opposing counsel would get the same amount of time he took. At one point Judge Motz asked a brief clarifying question regarding the religious liberty question, but otherwise the entire hour and twenty minutes of questioning of both Mr. Staver and Solicitor General Katyal focused exclusively on the question of the constitutionality of the minimum coverage requirement.

[...]   The Virginia case. In the Virginia case, the court focused almost exclusively on the technical legal issue of whether the federal court has jurisdiction to hear the Virginia case, touching only briefly on the Necessary and Proper Clause issue. Katyal relied heavily on Supreme Court cases holding that a state cannot challenge the constitutionality of a federal law unless the state is concretely injured in some way by that law. All Virginia had done in this case, he argued, was adopt a law nullifying the federal law, thus bootstrapping itself into court. If this is allowed, he argued, a state could forbid its citizens to fight in Afghanistan or participate in Social Security, and then sue to invalidate the federal law. He conceded that Liberty University had standing to challenge the law, but argued that Virginia did not.

Cutting to the chase, he concludes with this...

The judges seemed very familiar with not only the briefs in their cases, but also those filed in other courts. A couple of times the court asked Katyal about cases or arguments raised elsewhere that he was not prepared to address. Although they questioned all attorneys closely, I will be surprised if they do not rule for the constitutionality of the ACA. The government will likely face a harder time in next month when it will argue cases defending the statute in the Sixth and Eleventh Circuits. The Sixth Circuit panel has just been announced, and it is composed of two Republican appointees and one Democratic appointee; it includes Bush appointee Jeffrey Sutton, who before he was elevated to the bench made a name for himself arguing for states� rights before the Supreme Court.

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Readers wanting more health care reform reading check out this month's Health Wonk Review  hosted at Insureblog. This link by Timothy Jost plus a dozen or so more.