Dem. appointees deciding Va. AG's ObamaCare suit

John O'Brien May 10, 2011, 2:00pm


RICHMOND, Va. (Legal Newsline) - Two relative newcomers to a federal appeals court are on the three-judge panel deciding Virginia Attorney General Ken Cuccinelli's challenge to federal health care reform.

Three judges were randomly selected to hear the federal government's appeal of a district court's decision. Oral arguments were held Tuesday before judges Diana Gribbon Motz, Andre Davis and James Wynn.

Wynn and Davis were nominated by Obama in 2009 to the U.S. Court of Appeals for the Fourth Circuit, while Motz was nominated by President Bill Clinton 15 years earlier.

"I have said all along that this lawsuit is not about health care. It is about liberty," Cuccinelli told the judges. "At the same time, I understand that people want more affordable health care, and I sympathize with people who honestly cannot afford it.

"As a state senator, that was a problem I tried to address by trying to pass a law to allow our citizens to buy better or cheaper plans in other states. But as someone who has sworn to uphold the law, I cannot endorse taking away the rights of all so that government can provide health care to some."

Last month, the U.S. Supreme Court decided not to skip the Fourth Circuit, as Cuccinelli suggested. Cuccinelli had argued that the issue was of great national importance and resolving it quickly was ideal, but the nation's high court did not agree.

Cuccinelli's lawsuit claims a portion of the reform package that requires individuals to pay a yearly $695 penalty if they do not purchase health insurance is unconstitutional.

A federal judge sided with 26 states in a similar lawsuit in Florida in January.

Because the mandate is too integral a part to be separated, U.S. District Judge Roger Vinson voided the entire legislation in the multistate lawsuit. He called it "a difficult decision to reach."

"If Congress intends to implement health care reform -- and there would appear to be widespread agreement across the political spectrum that reform is needed -- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not," Vinson wrote.

"It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."

In the Virginia case, the federal government is appealing a district judge's decision to grant Cuccinelli summary judgment.

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