A federal appeals court heard oral arguments Tuesday in two cases challenging President Barack Obama's health care law. It was the first time the law's constitutionality has been heard on the appellate level.
A three-judge panel at the U.S. Court of Appeals for the Fourth Circuit, all appointed by Democrat presidents, appeared skeptical as they heard arguments seeking to invalidate the law.
Under the Patient Protection and Affordable Care Act, the "individual mandate" provision would require Americans purchase health insurance by 2014 or pay a penalty.
Liberty Counsel attorney Mathew Staver, which represented Liberty University and two individuals, argued that Congress lacks the authority to mandate a person to purchase health care insurance.
He pointed to the Commerce Clause, the Necessary and Proper Clause, and the Taxing and Spending Clause in making his case.
"The act goes far beyond the outer limit of the Constitution by seeking to regulate for the first time in history non-economic inactivity," Staver told the Virginia court.
Judge Diana Gribbon Motz asked Staver to define "inactivity," leading to a long grilling session by judges on what constituted "activity" and "inactivity" by individuals.
Staver responded that his plaintiffs wish to remain "idle" by not purchasing health insurance but a congressional mandate would "force them into the stream of Commerce."
He repeatedly tried to clarify that his suit was not challenging Congress' power to regulate a market should individuals choose to participate in that market but in this case, individuals don't want to participate.
Virginia law says that residents cannot be forced to buy insurance.
Motz asked whether Congress can force people to buy broccoli but then turned the "broccoli question" on its head and instead asked whether there was a constitutional problem in Congress prohibiting people from buying broccoli or trans-fats.
The prohibition of trans-fats would not violate the Commerce Clause, the judge pointed out.
Staver differentiated between the prohibition of a regulated good and the forced consumption of one. Allowing Congress to move forward with the health care mandate, he argued, would turn the "federal government into a police-power that would regulate the activities of the state."
Acting U.S. Solicitor General Neal Katyal, which represented the Obama administration, defended congressional authority to regulate activity that is commercial and economic in nature.
Judges asked Katyal, who usually argues before the Supreme Court, whether he disagreed or agreed that there is inactivity.
He rejected Staver's argument on inactivity in the health care market, calling participation in the health care market a "universal feature of our existence."
"Everyone is going to seek health care. No one knows precisely when. Providers can't opt out of providing it – that is if you show up destitute – it's still their duty to treat and those costs are sporadic and unknowable," said Katyal.
Citing federal figures, Katyal told the court that over 50 million Americans are uninsured leading to $43 billion in uncompensated costs that are passed onto consumers and insurance companies. He argued that Congress is not regulating health insurance as an end but as a means to an end, which is more affordable health care for everyone.
Judge James Wynn said it seems Congress is addressing the issue of "responsibility" through the mandate where people can't choose not to buy health insurance and let others pay the health care costs.
"We're going to make you responsible as citizens and you cannot put yourself in a position of not being responsible," Wynn interpreted the message Congress was trying to send by the mandate.
Motz wondered if that would make the government a "Big Brother."
The other lawsuit argued later Tuesday was filed by Virginia Attorney General Ken Cuccinelli, which also challenged Congress' authority under the Commerce Clause to force Americans to buy health insurance. Judges asked Cuccinelli on whether the state has legal standing to intervene on behalf of individuals.
In the Liberty case, U.S. District Court Judge Norman Moon upheld the health insurance requirement, while in the Virginia lawsuit, U.S. District Court Judge Henry Hudson found that the law was unconstitutional.