The first circuit court to hear arguments on the constitutionality of the Affordable Care Act convened yesterday in Virginia, and is was pretty smooth sailing for the government. The three-judge panel randomly selected to hear the case consisted of two Obama appointees and one Clinton appointee. I’m not sure if this will give rise to “judgers” claiming that the fix was in, but for the moment, that’s who heard the case. And they appeared unmoved by the argument that the individual mandate is unconstitutional.

One thing about the fate of the new health care law emerged vividly in its first challenge Tuesday in a federal appeals court: the challengers cannot defeat the law in court unless they sharpen their argument that Congress has set out in a revolutionary new direction to control Americans’ personal lives. They have built their challenge almost entirely on the premise that Congress can regulate “activity,” but cannot regulate “inactivity.” But that attempted distinction, so clear in the eye of the challengers, seemed fundamentally baffling — and thus probably unconvincing — to the three judges who heard just over two hours of argument in the Fourth Circuit Court in Richmond […]

Circuit Judge Diana Gribbon Motz was persistent, but ultimately unsuccessful, in trying to get Liberty University law school dean Matthew D. Staver to say just what “activity” means in talking about Congress’s power to regulate the Nation’s commerce, including the health care part of commerce. Staver tried to make the notion clearer, saying that it was “something you could see, touch,” or “something tangible.” People who don’t want to buy health insurance, he argued, are engaged only in “idleness,” and that is something beyond Congress’s reach.

But Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned “activity” as a crucial factor, and the Constitution itself does not mention the word, so, she kept asking, just what is it? “We’re trying to get you to give us some help,” the judge said, “with this distinction you think is so important.”

Other parts of the hearing considered whether Virginia even had standing to sue over the individual mandate. And the fact that nobody mentioned severability, or taking the individual mandate out of the law while leaving the rest of it intact, indicates that the court challenge ultimately won’t be successful in the 4th Circuit.

But for the life of me, I can’t see why this matters. Everyone knows that some suit challenging the law, and particularly the individual mandate, will wind up in the Supreme Court. The arguments from the judges that work their way up to SCOTUS may be important in the abstract, but I don’t see the Roberts Court demurring to a three-judge panel in Richmond, or the one in Atlanta which will hear the Florida-based suit against the Affordable Care Act on June 8. They have had no compunction against making law in their time on the bench.

So while winning the case may cheer the White House and provide an additional talking point about how many judges found the law constitutional, ultimately this will land in the lap of Anthony Kennedy. And he will make the final determination on this.

David Dayen

David Dayen

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