Protesters greet President Obama's motorcade on its way to a healthcare… (Haraz N. Ghanbari / Associated…)
Reporting from Washington — President Obama's healthcare law faces a series of challenges in three appeals courts starting Tuesday as Republican lawyers from 27 states will urge the courts to strike down the law as unconstitutional.
In a sign of the high stakes and the partisan divide, one case will feature a rare courtroom clash between the Obama administration's top appellate lawyer and his counterpart from the George W. Bush administration.
At issue is whether the government can require virtually all Americans to have health insurance by 2014 or pay a small tax penalty. Democrats said the mandate was needed to make sure that all who could afford to do so paid for medical insurance. Otherwise, they said, freeloaders would force hospitals and taxpayers to pay for them if they were badly injured or came down with crippling diseases.
Republicans who opposed the law called the mandate an unprecedented government meddling in private lives. It "would imperil individual liberty" and "sound the death knell" for the Constitution if the government can "compel" people to buy products, Paul D. Clement, the former Bush administration solicitor general, said in a brief last week.
Clement, 44, a former clerk for Justice Antonin Scalia, was recently hired by Republican state attorneys and governors from 26 states to argue for striking down the healthcare law. He will represent them before the U.S. 11th Circuit Court of Appeals in Atlanta in early June.
On the other side that day will be Acting Solicitor Gen. Neal Katyal, who on Tuesday will also clash with lawyers from a 27th state — Virginia — before the U.S. 4th Circuit Court of Appeals in Richmond.
If either U.S. appeals court decides the law is unconstitutional, Obama's lawyers will have to persuade the Supreme Court to reverse the ruling and uphold the law. The legal battle in the high court would probably play out next year while the presidential campaign is underway.
So far, the legal fight has mirrored the partisan split over healthcare. Five district judges have ruled on legal challenges. Three Democratic appointees upheld the law and two Republican appointees ruled it unconstitutional.
In Richmond, a three-judge panel will hear two appeals. Virginia Atty. Gen. Ken Cuccinelli sued and won the first ruling from a judge declaring the law unconstitutional. Separately, Liberty University, the Christian school founded by the Rev. Jerry Falwell, sued and lost before a different judge.
The ideological leaning of the three judges could determine the outcome, but which three will hear the case won't be known until the day of the argument. Though the 4th Circuit was long known as a conservative bastion, it has four new Obama appointees among its 13 judges.
But the most important case figures to be the one before the 11th Circuit in Atlanta. The legal challenge there speaks for governors or state attorneys from 26 states from Florida to Alaska. Besides contesting the mandate affecting individuals, they argue for states' rights and assert it is unconstitutional to force them to provide more healthcare for low-income Americans.
In January, Judge Roger Vinson in Pensacola, Fla., struck down the entire law. The 11th Circuit, which has a solidly conservative reputation, will hear the government's appeal of that decision on June 8.
This month, the U.S. 6th Circuit Court of Appeals in Cincinnati will hear still another challenge to the law.