05/09/2011 06:27 pm ET | Updated Jul 09, 2011

Health Care Reform's Legal Battle: Next-To-Last Stage Begins Tuesday

WASHINGTON -- Tuesday morning marks the next, and perhaps next to last, stage in a legal drama that will determine the fate of President Barack Obama's health care reform law.

The United States Court of Appeals for the Fourth Circuit will consider two separate cases, each pertaining to the constitutionality of the Affordable Care Act. The losing parties will appeal whatever determinations are made to the Supreme Court. But the fine print of Tuesday's three-panel decision could have major ramifications on the ultimate ruling, including, perhaps, laying down the legal and political framework for allowing the law to be dismissed or kept in place.

Underscoring the importance of the case, the Obama administration is dispatching Acting Solicitor General Neal Katyal to defend the law's individual mandate against accusations that it discriminates against religion and infringes upon state or individual rights.

Officials at the White House and in the Justice Department are, in private, cautiously optimistic about the dual cases, the first of which -- Liberty University v. Timothy Geithner -- will be argued at 9:30 a.m., the latter of which -- Commonwealth of Virginia v. Sebelius -- will begin immediately after.

Since the crafting of the law, defenders have insisted that the individual mandate for insurance coverage falls within Congress’ power under the Commerce Clause. But a real victory may not be one that is fought over strict legal merits.

Proponents of health care reform hope that when the Fourth Circuit issues its ruling (likely in a matter of months), it ends up dismissing the latter case on grounds that the appellate lacks standing. Such a determination, based on the reasoning that a state does not have a judiciable claim of injury, could be a blow to the other attorneys general filing suit against the law (though, to be fair, not all lawsuits brought by attorneys general are based on the same claim).

“If they can knock the state out as plaintiffs, the cases will go on, they just won’t have as much sex appeal with all these AGs suing,” said Timothy Jost, a health care legal expert and law professor at Washington and Lee. “It will make a big difference whether the case is ultimately decided if the states are the primary challenger to the law… it seems to me that if the lower courts decide that the states have no business being in federal court challenging this law, it takes away from the status of the challenges.”

The likelihood of this happening is, experts say, fairly strong. The state of Virginia must prove the Affordable Care Act negatively affects its own health care law and that, tangentially, the individual mandate is injurious to its citizens. That line of argument may seem logical but it remains, nevertheless, tricky legal reasoning.

“That sort of injury is an abstract one,” said Kevin Walsh, a professor of law at the University of Richmond School of Law, who clerked for Associate Justice Antonin Scalia and also in the U.S. Court of Appeals for the Fourth Circuit. “It is not concrete and it rubs up against past Supreme Court cases.”

The federal government also has what many view as an advantageous setup heading into tomorrow’s oral arguments. Neither side will have control over which three judges ultimately get picked from the pool of 14 (it has to be done by random lottery and will be announced on Tuesday). But the fact that the Liberty case will go before Virginia is promising. Katyal will respond first to a much weaker argument, one that the government has already won: that the Affordable Care Act violates the right to free exercise of religion and association. He will also make the first round of argument in the second, more critical case.

“What the federal government wants to do is win the Virginia case on jurisdiction and the Liberty University case on the merits,” said Walsh. “The way it is set up enables them to do that."

Finally, time is on the side of the government. While opposition to the health care reform law remains relatively strong, it has been waning. An administration official pointed out that Rasmussen Reports (hardly a bullhorn of pro-Obama public opinion data) recently registered the lowest percentage of Americans who wanted to repeal the law. Republicans in Congress, meanwhile, have formally acknowledged that the repeal movement is dead. And while Justices should, theoretically, be immune to surrounding politics, the fact remains that the further along the implementation of the health care law goes, the harder it gets to unravel.

“It really is to the benefit of the federal government to put off a final decision until it gets implemented and becomes a lot harder to untangle,” said Jost.

In the end, the Fourth Circuit is just one of several appellate courts that will hear constitutional challenges to the health care law (the 6th and the 11th will follow). And while a ruling on standing may be the most critical outcome in the final decision, it’s not the only ruling of note. Also up for debate is whether the individual mandate can be severed from the entire bill, a legal debate that has split two federal judges so far.