Battle Over Health Care Law Shifts to Federal Appellate Courts

At Tuesday’s hearing, the United States Court of Appeals for the Fourth Circuit will consider a pair of contradictory rulings sent up from the lower courts. In one case, filed by Virginia’s attorney general, a federal district judge in Richmond ruled late last year that Congress had exceeded its authority by requiring most Americans to obtain health insurance. In the other, filed by Liberty University, a conservative Christian institution, a district judge sitting 100 miles away in Lynchburg, Va., upheld the insurance mandate.

If the appellate courts act quickly, the question of the health law’s constitutionality could land before the Supreme Court as soon as the next term, which opens in October.

With the lower courts divided, each side hopes to build a string of victories in the midlevel Courts of Appeals.

“We want to win as many of these as we can,” said Attorney General Kenneth T. Cuccinelli II of Virginia, a Republican. “If we have nothing but wins all the way up to the Supreme Court, there is an element of momentum, I think, where the justices consider what has gone on before the case came to them.”

Since the enactment of the Affordable Care Act in March 2010, 31 lawsuits have been filed to challenge it, according to the Justice Department, which is defending the Obama administration. Nine are awaiting action by Courts of Appeals, and nine are pending in federal district courts. The others have been dismissed.

Three district judges appointed by Democratic presidents have upheld the law while two Republican appointees have struck down part or all of it.

On June 1, the Court of Appeals for the Sixth Circuit in Cincinnati is scheduled to hear the appeal of a ruling in favor of the law. On June 8, the Court of Appeals for the 11th Circuit in Atlanta will review a Florida judge’s ruling that invalidated the entire act. That judge later suspended his own order until higher courts could settle the matter.

The Supreme Court recently turned down a request by Mr. Cuccinelli that it hear the case without review by the Court of Appeals.

In Tuesday’s hearing, a three-judge panel will first hear arguments in the case filed by Liberty University and then in the one filed by Mr. Cuccinelli. The makeup of the randomly selected panel will not be revealed until Tuesday morning.

With the addition of four appointees by President Obama, the Fourth Circuit bench now includes seven members named by Democratic presidents and seven named by Republicans. The loser before the three-judge panel may petition for a hearing before the entire court before taking the case to the Supreme Court.

The Obama administration will be represented in each of the appellate cases by Neal K. Katyal, the acting solicitor general.

Solicitors general more typically argue for the federal government before the Supreme Court. Although it is not unprecedented for them to appear before Courts of Appeals, Mr. Katyal’s assignment is seen as a nod to the significance of the case.

E. Duncan Getchell Jr., Virginia’s solicitor general, will speak for the commonwealth, as he did in the district court, and Liberty University will be represented by Mathew D. Staver, the dean of its law school.

The plaintiffs in the 11th Circuit case, including Republican officials from 26 states, will be represented by Paul D. Clement, a United States solicitor general under President George W. Bush. Mr. Clement recently resigned from King & Spalding after it withdrew its support for his defense of a federal law banning recognition of same-sex marriages.

Scores of politicians, economists and interest groups have filed friend-of-the-court briefs on both sides of the health care litigation.

The Virginia and Liberty University cases bear some differences. But both challenge the insurance requirement on the ground that it cannot be supported by the commerce clause of the United States Constitution, which gives Congress broad but not unlimited authority to regulate interstate commerce. Starting in 2014, the health care law would require most Americans to obtain policies or pay an income tax penalty.

The plaintiffs complain that the government has never before forced citizens to buy a commercial product. In the lower courts, arguments have centered on whether a choice to not buy insurance constitutes the kind of economic “activity” that the Supreme Court has, in the past, found subject to federal regulation.

The judges are also being asked to determine whether Virginia has legal standing to challenge the law, whether the insurance requirement can be supported under Congress’s authority to tax, whether it runs afoul of religious liberties, whether employers can be required to contribute to their workers’ health coverage, and whether a finding against one provision of the law should invalidate the entire act.