Combatants will square off in four circuit cases set for coming weeks.

By Marcia Coyle

Like toy soldiers standing on a carpeted battlefield, an array of groups and individuals has taken sides for the next front in the litigation assault on the new health care reform law.

From top House and Senate Democratic leaders to House Republican members, from the American Civil Liberties Union to the American Center for Law & Justice, the combatants have bolstered key arguments in four cases set to be heard in federal appeals courts over the next month.

Signaling the importance of the outcome to the Obama administration, acting Solicitor General Neal Katyal will defend the constitutionality of the Patient Protection and Affordable Care Act in all four cases.

The U.S. Court of Appeals for the 4th Circuit is the first arena, with two cases scheduled for ­separate arguments before a three-judge panel on May 10: Liberty University v. Geithner and Commonwealth of Virginia v. Sebelius. On June 1, the scene shifts to the 6th Circuit for a panel hearing in Thomas More Law Center v. Obama. And the 11th Circuit moves to the fore on June 8 with arguments in State of Florida v. U.S. Dept. of Health and Human Services. Not yet scheduled, but expected to be argued some time in September before a panel of the D.C. Circuit, is Mead v. Holder.

“When the cases were first filed, most observers familiar with constitutional law thought [the law’s constitutionality] was a no-brainer,” said health law scholar Timothy Jost of Washington and Lee University School of Law, who supports the law. But, he acknowledged, the challengers have had some success.

In three of the five cases being argued at the circuits between May 10 and September, federal district judges — all Democratic appointees — upheld the law. In the other two, Republican-appointed district judges have found it constitutionally flawed. (Two other appeals pending in the 3d and 9th circuits stem from challenges dismissed on standing grounds.)

Once the appellate panels get to the merits in the four scheduled arguments, Jost said, they all are considering basically the same question: Does the minimum health insurance coverage provision — the so-called individual mandate to purchase insurance or pay a penalty — violate the commerce clause?

“The commerce clause is the issue,” agreed Robert Muise of the Thomas More Law Center, the losing party before U.S. District Judge George Steeh of Detroit. “It’s really the ball of wax.”

NOT IDENTICAL

The appellate panels essentially will face three questions about the controversial law:

• Is the individual mandate a valid exercise of Congress’ law-making power under the commerce clause?

• Is the individual mandate a valid exercise of Congress’ taxing power?

• And if the mandate is unconstitutional, can it be severed from the law, or must the entire law be struck down?

Although those questions are central to all four cases, some of the cases have unique wrinkles, such as standing and religion issues.

For example, in Liberty University v. Geithner, the private Christian institution appeals more than its defeat on its challenge to the individual mandate. It also lost its challenge to the law’s mandate that certain employers provide a minimum level of health insurance or face a penalty for noncompliance. And it reargues its unsuccessful claims that the law violates the free exercise clause, the establishment clause, the Religious Freedom Restoration Act (RFRA) and the Fifth Amendment equal protection clause.

On the religion-based appeals, the university and several citizens contend that the law’s individual mandate conflicts with the “sincerely held religious beliefs” of some who do not have health insurance and who object to subsidizing abortions, and that it discriminates in its very limited exemptions for certain religious groups.

“Those are basically the backup constitutional provisions after you ask the main question whether Congress has the authority under the commerce clause,” said Mathew Staver of Liberty Counsel, who will argue on the university’s behalf. “If there is a corresponding constitutional impediment, it helps to answer the question.”

The government, he said, “hasn’t taken those arguments as seriously as it ought to and chose not to rebut those in its appeal brief, which is odd. Even if you don’t consider them strong arguments, if you fail to rebut them, it helps to strengthen them.”

His clients’ main thrust, however, he added, has always been on the question of Congress’ authority to mandate coverage.

The American Civil Liberties Union takes the religious claims seriously. In an amicus brief in the case, it contends Staver’s clients have not shown that the health law substantially burdens their religious exercise.

Those backup claims, the ACLU argues, are “wholly unsupported” by legal precedent and “would transform RFRA from a shield that protects against non-vital governmental acts that truly burden religious exercise into a sword that could fell virtually any effort to enact comprehensive legislation.”

A RFRA claim also was made by a group of taxpayers represented by the American Center for Law & Justice in Mead v. Holder, now pending argument in the D.C. Circuit. The claim was rejected by U.S. District Judge Gladys Kessler.

STATES’ STANDING

In the four appeals scheduled for argument, the federal government is challenging the standing to sue of two opponents: the commonwealth of Virginia, which prevailed before U.S. District Judge Henry Hudson on the individual-mandate issue, and the 26 states that won their suit before U.S. District Judge Roger Vinson in the Florida case.

Virginia, which filed its suit the day on which the health insurance bill was signed into law, based its standing on a new state law that said no Virginia resident “shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where an individual is named a party in a judicial or administrative proceeding.”

Virginia claimed that the individual mandate imposed “immediate and continuing burdens on Virginia” by creating a “collision” with its own state law, the “Virginia Health Care Freedom Act.”

Hudson denied the federal government’s motion to dismiss for lack of standing, saying “states have an interest as ­sovereigns in exercising ‘the power to create and enforce a legal code,’ ” and that Virginia could sue “to defend the Virginia Health Care Freedom Act from the conflicting effect of an allegedly unconstitutional federal law.”

In the government’s appeal, Katyal argues, “The minimum coverage provision applies only to individuals, not to the Commonwealth, and Supreme Court precedent forecloses a suit by a state ‘to protect her citizens from the operation of federal statutes.’ “

The state law, he wrote, “does no more than declare federal law unenforceable against Virginia residents.”

Katyal will face Virginia Solicitor General E. Duncan Getchell Jr., who argues, “Whenever a state has its code of laws brought into question by federal action, such that it will have to give way under the Supremacy Clause if the federal enactment is valid, the state has suffered a sovereign injury and has standing to challenge the constitutionality of the federal enactment.”

In the Florida case, Katyal contends that Vinson’s ruling — which struck down the entire law after finding the individual mandate unconstitutional — was issued on behalf of all 26 states even though the judge declined to decide whether 24 of the 26 states had standing to sue. Vinson, using reasons similar to Hudson’s in the Virginia case, found that Utah and Idaho had standing because they had enacted laws to protect their citizens “from forced compliance” with the health law. But Florida plaintiffs include not only the 26 states but also the National Federation of Independent Businesses, which, say their counsel, strengthens their standing argument.

Although it is not finally decided, former solicitor general Paul Clement of Washington’s Bancroft and David Rivkin of Baker Hostetler may represent the states in the 11th Circuit arguments. Rivkin has been counsel since the beginning. Clement is listed as the states’ counsel on their appeals brief.

The standing issue is a serious one, according to a number of scholars on both sides. Dueling amicus briefs have been filed on that issue in the two cases. One, supporting Katyal, has been filed by a group of federal-jurisdiction professors, represented by F. Paul Bland Jr. of Chavez & Gertler of Mill Valley, Calif. The other, supporting Florida and the states, comes from the Pacific Legal Foundation and Americans for Free Choice in Medicine, represented by Timothy Sandefur of the Pacific Legal Foundation.

Not surprisingly, the central issues in all four cases also have triggered an amicus flood. More than two dozen briefs have been filed in the Virginia and Florida appeals alone. The briefs’ authors include some of the top appellate lawyers in the country, including Seth Waxman of Wilmer Cutler Pickering Hale and Dorr; Andrew Pincus of Mayer Brown; Jay Sekulow of the American Center for Law & Justice; Jeffrey Lamken of MoloLamken; and Catherine Stetson of Hogan Lovells, as well as legal experts active in these issues, such as Hans Bader of the Competitive Enterprise Institute; Randy Barnett of Georgetown University Law Center; Elizabeth Wydra of the Constitutional Accountability Center; and Ilya Somin of George Mason University School of Law.

“I think the briefing is what we all sort of expected on both sides,” Wydra said. Indeed, other lawyers in the four cases said the issues have been well-hashed by the district court judges.

And now all eyes are on the composition of the appellate panels, still unknown. The 4th Circuit, less conservative than it once was, has among its active judges seven Democratic appointees and four Republican appointees; the 11th has six Republican appointees and five Democratic ones, and the 6th Circuit includes 10 Republican appointed active judges and five Democratic appointees.

The end game for everyone, according to the lawyers and even the district court judges involved, is the U.S. Supreme Court. But for the next round in this fight, said Thomas More Law Center’s Muise, “I’m just thinking about making the strongest arguments I can.”