The federal government’s top appellate lawyer, Acting Solicitor General Neal K. Katyal, will defend the constitutionality of the federal health care law in two cases before the 4th U.S. Circuit Court of Appeals on Tuesday.
His adversaries will be Mathew D. Staver, dean of the Liberty University law school, and Virginia Solicitor General E. Duncan Getchell Jr.
The first case is Liberty University v. Geithner, No. 10-2347, in which Lynchburg U.S. District Judge Norman K. Moon ruled in favor of the government on the pleadings. The second is Commonwealth v. Sebelius, No. 11-1057, in which Richmond U.S. District Judge Henry E. Hudson ruled unconstitutional the general requirement of the law that everyone must obtain health insurance or pay a penalty.
The three-judge panel that will hear the arguments won’t be named until Tuesday, and the background of the judges may be the biggest news to come out of the arguments, which by now have been well honed and publicized.
So far, all Republican appointees to rule on the constitutionality of the so-called individual mandate have ruled against the government, while Democratic appointees have upheld the provision.
The court is expecting a crowd. The argument will be held in its largest courtroom, which holds 125, and there will be a video and audio feed to its second largest courtroom, which has room for 100 more.
The number of amicus briefs certainly suggests that level of interest. More than three dozen have been filed in Sebelius, which has attracted somewhat more attention because of the ruling against the government.
The two cases are the first of more than 20 suits challenging the law to be argued before an appellate court.
Another case upholding the law is set to be argued before the 6th Circuit on May 1, and briefs have been filed in the 11th Circuit in an appeal of a ruling holding the law unconstitutional.