President Barack Obama's health care overhaul will get its first oral arguments in federal appeals court Tuesday when a three-judge panel hears two Virginia cases _ one that upheld the law and another that struck down its key provision.
Nine lawsuits challenging the law are pending on appeal, but the Virginia cases before the 4th U.S. Circuit Court of Appeals are the first to reach the oral argument stage. Thirteen cases have been dismissed with no appeal filed, and nine are pending in district courts, according to federal officials.
In the most prominent of the two Virginia cases, U.S. District Judge Henry E. Hudson struck down the health care law's key provision: a requirement that individuals buy health insurance or pay a penalty starting in 2014. Thirty-one lawsuits challenging the law have been filed nationally, and Hudson _ a 2002 appointee of President George W. Bush _ was the first judge to strike down any of its provisions. Hudson left the rest of the law intact.
"An individual's personal decision to purchase _ or decline to purchase _ health insurance from a private provider is beyond the historical reach of the Commerce Clause," Hudson wrote in the Dec. 13 opinion, which the U.S. Justice Department promptly appealed.
U.S. District Judge Norman K. Moon in Lynchburg reached the opposite conclusion in a lawsuit filed by Liberty University, the conservative Christian school founded by the Rev. Jerry Falwell. Two weeks before Hudson's ruling, the 1997 appointee of President Bill Clinton ruled that the mandate is a proper exercise of congressional authority under the Commerce Clause.
Court officials expect a packed house for the back-to-back hearings. Courtroom doors will be opened two hours early, and a closed-circuit television feed of the proceedings will be shown in a second courtroom. Also, for the first time, the court will make an audio recording of the hearings available on its website later in the day.
The appeals court in Richmond will hear the Liberty case at 9:30 a.m., then the lawsuit filed by Virginia Attorney General Kenneth T. Cuccinelli. The hearings are scheduled to last 40 minutes each, and rulings are expected in a few weeks.
Cuccinelli said Monday his team spent about an hour and a half practicing on the eve of the arguments. They had the advantage, he said, because they will get to hear the Liberty case and then will go last in their case, so they will know what the judges' questions are.
"It's probably the most important case any of the lawyers on the matter will ever work on in their lives, and we all recognize that's what it is," he said. "But it is straight legal argument. We've done the work and we're ready to go."
Neither side will know which three justices from the 14-member bench will hear the cases before Tuesday morning.
"Regardless of whether the Fourth Circuit panel hearing the case is composed of liberal judges like Diana Motz or conservatives like J. Harvie Wilkinson III, the result should be the same: the ACA is constitutional," said Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, which filed brief in the case defending the constitutionality of the health care overhaul.
Cuccinelli said if he is not successful, he will appeal directly to the U.S. Supreme Court.
"We'd like a good hearing and a good opinion, obviously, out of the 4th Circuit, but at the same time this is all just in the course of doing business and we don't want to get overwrought about it even as important as it is," he said.
Cuccinelli asked the Supreme Court to take up his case without waiting for an appeals court review, but his petition _ which the Justice Department opposed _ was rejected. The case could still reach the Supreme Court in time for a decision by early summer 2012.
Cuccinelli said he was confident, but acknowledged that the case was unprecedented and anything could happen.
"If I had to bet on one side or the other, I'd bet on us," Cuccinelli said. "But I wouldn't bet everything."
Associated Press Writer Dena Potter contributed to this article.