Appellate Court Hears Defense of Health Law

The 14 members of the United States Court of Appeals for the Fourth Circuit, the first appellate court to review the law, are evenly divided as appointees of Democratic and Republican presidents. That puts the odds of drawing three Democratic appointees in the computerized lottery at roughly 10 to 1. Lawyers do not learn the makeup of the panel until the day of the hearing.

The party of the appointing president is not necessarily predictive of a federal judge’s leanings. But in five decisions in lower courts, three Democratic-appointed judges have upheld the Affordable Care Act while two Republican-appointed judges have ruled that its central provision — the requirement that most Americans obtain health insurance — is unconstitutional.

At Tuesday’s hearing in Richmond, the three Fourth Circuit judges — Diana Gribbon Motz, who was appointed by President Bill Clinton, and the two Obama appointees, Andre M. Davis and James A. Wynn Jr. — challenged both sides with pointed questioning. The hearing lasted more than two hours.

As in the lower courts, the judges focused on the novel question of how to define the choice not to buy health insurance: as commercial activity that the Supreme Court has ruled can be regulated, or as inactivity that is beyond Congress’s reach.

They also devoted considerable time to discussing whether Virginia’s attorney general had legal standing to challenge the insurance mandate, because it would impose a requirement on individuals but not on states.

Virginia stakes its right to sue on its enactment of a state law aimed at exempting residents from the insurance requirement, thereby creating a conflict with federal law.

“If you adopted this theory of standing,” argued Neal K. Katyal, the acting United States solicitor general, “you would allow, for example, a state that was opposed to the war in Afghanistan to say our citizens should be exempt and file a lawsuit on that basis.”

The Fourth Circuit panel heard the appeals of two challenges to the health care act that yielded opposite results late last year.

In one challenge, by Attorney General Kenneth T. Cuccinelli II of Virginia, Judge Henry E. Hudson of Federal District Court in Richmond ruled that by requiring most Americans to buy insurance — a commercial product — the mandate exceeded Congress’s authority to regulate interstate commerce. In the other, filed by Liberty University, Judge Norman K. Moon of Federal District Court in Lynchburg, Va., found that the mandate fell comfortably within “well-settled principles” set by the Supreme Court.

The Virginia health care cases are the first of four scheduled for appellate hearings during the next five weeks. The Court of Appeals for the Sixth Circuit, in Cincinnati, will hear arguments on June 1 in the appeal of a ruling upholding the law. A week later, the Court of Appeals for the 11th Circuit, in Atlanta, will hear the Obama administration’s appeal of a Florida judge’s ruling that invalidated the entire act. That judge suspended his ruling until appellate courts could hear the case.

It is widely anticipated that the Supreme Court will ultimately settle the matter, although it is not clear which of several cases it might take. That may depend on how and when the appeals courts rule.

If, for instance, the three-judge panel rules against Virginia, the commonwealth expects to appeal directly to the Supreme Court without requesting a hearing before the full Fourth Circuit bench, Mr. Cuccinelli, a Republican, said on Tuesday. But if the Fourth Circuit rules that Virginia does not have standing to challenge the law, the Supreme Court could wait for a case that gives it a more focused look at the central issues.

In Tuesday’s hearing, Mr. Katyal slightly shifted the emphasis in the government’s defense of the health law. He tried to steer the judges away from a semantic focus on whether a failure to buy health insurance constituted activity or inactivity, a question that has divided the lower courts.

Past Supreme Court decisions have backed Congress’s authority under the Constitution’s Commerce Clause to regulate “activities” that have a substantial effect on interstate commerce. But the court has never considered whether the term can be defined so broadly as to include decisions not to do something.

Mr. Katyal argued instead that the activity being regulated by the health care law is merely the means of payment by Americans who will inevitably enter the health care market and who will shift costs to others if they are not insured.

“Congress is not asking people to buy something they would not otherwise buy,” Mr. Katyal said.

Mathew D. Staver, the dean of Liberty University’s law school, disputed that assertion. The health care act, Mr. Staver said, “forces inactive bystanders into the stream of commerce.”

 

Appellate Court Hears Defense of Health Law

The 14 members of the United States Court of Appeals for the Fourth Circuit, the first appellate court to review the law, are evenly divided as appointees of Democratic and Republican presidents. That puts the odds of drawing three Democratic appointees in the computerized lottery at roughly 10 to 1. Lawyers do not learn the makeup of the panel until the day of the hearing.

The party of the appointing president is not necessarily predictive of a federal judge’s leanings. But in five decisions in lower courts, three Democratic-appointed judges have upheld the Affordable Care Act while two Republican-appointed judges have ruled that its central provision — the requirement that most Americans obtain health insurance — is unconstitutional.

At Tuesday’s hearing in Richmond, the three Fourth Circuit judges — Diana Gribbon Motz, who was appointed by President Bill Clinton, and the two Obama appointees, Andre M. Davis and James A. Wynn Jr. — challenged both sides with pointed questioning. The hearing lasted more than two hours.

As in the lower courts, the judges focused on the novel question of how to define the choice not to buy health insurance: as commercial activity that the Supreme Court has ruled can be regulated, or as inactivity that is beyond Congress’s reach.

They also devoted considerable time to discussing whether Virginia’s attorney general had legal standing to challenge the insurance mandate, because it would impose a requirement on individuals but not on states.

Virginia stakes its right to sue on its enactment of a state law aimed at exempting residents from the insurance requirement, thereby creating a conflict with federal law.

“If you adopted this theory of standing,” argued Neal K. Katyal, the acting United States solicitor general, “you would allow, for example, a state that was opposed to the war in Afghanistan to say our citizens should be exempt and file a lawsuit on that basis.”

The Fourth Circuit panel heard the appeals of two challenges to the health care act that yielded opposite results late last year.

In one challenge, by Attorney General Kenneth T. Cuccinelli II of Virginia, Judge Henry E. Hudson of Federal District Court in Richmond ruled that by requiring most Americans to buy insurance — a commercial product — the mandate exceeded Congress’s authority to regulate interstate commerce. In the other, filed by Liberty University, Judge Norman K. Moon of Federal District Court in Lynchburg, Va., found that the mandate fell comfortably within “well-settled principles” set by the Supreme Court.

The Virginia health care cases are the first of four scheduled for appellate hearings during the next five weeks. The Court of Appeals for the Sixth Circuit, in Cincinnati, will hear arguments on June 1 in the appeal of a ruling upholding the law. A week later, the Court of Appeals for the 11th Circuit, in Atlanta, will hear the Obama administration’s appeal of a Florida judge’s ruling that invalidated the entire act. That judge suspended his ruling until appellate courts could hear the case.

It is widely anticipated that the Supreme Court will ultimately settle the matter, although it is not clear which of several cases it might take. That may depend on how and when the appeals courts rule.

If, for instance, the three-judge panel rules against Virginia, the commonwealth expects to appeal directly to the Supreme Court without requesting a hearing before the full Fourth Circuit bench, Mr. Cuccinelli, a Republican, said on Tuesday. But if the Fourth Circuit rules that Virginia does not have standing to challenge the law, the Supreme Court could wait for a case that gives it a more focused look at the central issues.

In Tuesday’s hearing, Mr. Katyal slightly shifted the emphasis in the government’s defense of the health law. He tried to steer the judges away from a semantic focus on whether a failure to buy health insurance constituted activity or inactivity, a question that has divided the lower courts.

Past Supreme Court decisions have backed Congress’s authority under the Constitution’s Commerce Clause to regulate “activities” that have a substantial effect on interstate commerce. But the court has never considered whether the term can be defined so broadly as to include decisions not to do something.

Mr. Katyal argued instead that the activity being regulated by the health care law is merely the means of payment by Americans who will inevitably enter the health care market and who will shift costs to others if they are not insured.

“Congress is not asking people to buy something they would not otherwise buy,” Mr. Katyal said.

Mathew D. Staver, the dean of Liberty University’s law school, disputed that assertion. The health care act, Mr. Staver said, “forces inactive bystanders into the stream of commerce.”

 

Appellate Court Hears Defense of Health Law

The 14 members of the United States Court of Appeals for the Fourth Circuit, the first appellate court to review the law, are evenly divided as appointees of Democratic and Republican presidents. That puts the odds of drawing three Democratic appointees in the computerized lottery at roughly 10 to 1. Lawyers do not learn the makeup of the panel until the day of the hearing.

The party of the appointing president is not necessarily predictive of a federal judge’s leanings. But in five decisions in lower courts, three Democratic-appointed judges have upheld the Affordable Care Act while two Republican-appointed judges have ruled that its central provision — the requirement that most Americans obtain health insurance — is unconstitutional.

At Tuesday’s hearing in Richmond, the three Fourth Circuit judges — Diana Gribbon Motz, who was appointed by President Bill Clinton, and the two Obama appointees, Andre M. Davis and James A. Wynn Jr. — challenged both sides with pointed questioning. The hearing lasted more than two hours.

As in the lower courts, the judges focused on the novel question of how to define the choice not to buy health insurance: as commercial activity that the Supreme Court has ruled can be regulated, or as inactivity that is beyond Congress’s reach.

They also devoted considerable time to discussing whether Virginia’s attorney general had legal standing to challenge the insurance mandate, because it would impose a requirement on individuals but not on states.

Virginia stakes its right to sue on its enactment of a state law aimed at exempting residents from the insurance requirement, thereby creating a conflict with federal law.

“If you adopted this theory of standing,” argued Neal K. Katyal, the acting United States solicitor general, “you would allow, for example, a state that was opposed to the war in Afghanistan to say our citizens should be exempt and file a lawsuit on that basis.”

The Fourth Circuit panel heard the appeals of two challenges to the health care act that yielded opposite results late last year.

In one challenge, by Attorney General Kenneth T. Cuccinelli II of Virginia, Judge Henry E. Hudson of Federal District Court in Richmond ruled that by requiring most Americans to buy insurance — a commercial product — the mandate exceeded Congress’s authority to regulate interstate commerce. In the other, filed by Liberty University, Judge Norman K. Moon of Federal District Court in Lynchburg, Va., found that the mandate fell comfortably within “well-settled principles” set by the Supreme Court.

The Virginia health care cases are the first of four scheduled for appellate hearings during the next five weeks. The Court of Appeals for the Sixth Circuit, in Cincinnati, will hear arguments on June 1 in the appeal of a ruling upholding the law. A week later, the Court of Appeals for the 11th Circuit, in Atlanta, will hear the Obama administration’s appeal of a Florida judge’s ruling that invalidated the entire act. That judge suspended his ruling until appellate courts could hear the case.

It is widely anticipated that the Supreme Court will ultimately settle the matter, although it is not clear which of several cases it might take. That may depend on how and when the appeals courts rule.

If, for instance, the three-judge panel rules against Virginia, the commonwealth expects to appeal directly to the Supreme Court without requesting a hearing before the full Fourth Circuit bench, Mr. Cuccinelli, a Republican, said on Tuesday. But if the Fourth Circuit rules that Virginia does not have standing to challenge the law, the Supreme Court could wait for a case that gives it a more focused look at the central issues.

In Tuesday’s hearing, Mr. Katyal slightly shifted the emphasis in the government’s defense of the health law. He tried to steer the judges away from a semantic focus on whether a failure to buy health insurance constituted activity or inactivity, a question that has divided the lower courts.

Past Supreme Court decisions have backed Congress’s authority under the Constitution’s Commerce Clause to regulate “activities” that have a substantial effect on interstate commerce. But the court has never considered whether the term can be defined so broadly as to include decisions not to do something.

Mr. Katyal argued instead that the activity being regulated by the health care law is merely the means of payment by Americans who will inevitably enter the health care market and who will shift costs to others if they are not insured.

“Congress is not asking people to buy something they would not otherwise buy,” Mr. Katyal said.

Mathew D. Staver, the dean of Liberty University’s law school, disputed that assertion. The health care act, Mr. Staver said, “forces inactive bystanders into the stream of commerce.”

 

European Court Rejects Bid to Limit News on Celebrities

The European Court of Human Rights in Strasbourg, France, on Tuesday struck down a legal bid to strengthen the privacy protections for public figures. At the same time, individuals have been turning to the Internet to circumvent British reporting restrictions that protect these figures, turning Twitter into a sort of WikiLeaks for celebrity tell-alls.

In the Strasbourg decision, the European court rejected a bid by Max Mosley, former president of the governing body of Formula One auto racing, to require news organizations to notify the subjects of articles before publication. The court said such a requirement would have had a “chilling effect” on freedom of speech.

The lawsuit stemmed from a 2008 article in The News of the World, a racy British tabloid, with the headline “F1 boss has sick Nazi orgy with 5 hookers” and was based on video shot secretly by one of the participants.

Mr. Mosley, a son of Oswald Mosley, former leader of the British Union of Fascists, sued The News of the World, saying the paper had not bothered to check the story with him before publishing. A British court called the article a flagrant invasion of Mr. Mosley’s privacy and fined the paper ￡60,000, or nearly $100,000. The court said there was no evidence of Nazi behavior in the sex session and thus no justification for publication.

When confronted by tabloids with similar exposés, or simply with allegations of garden-variety extramarital affairs, many British celebrities have gone to court to secure injunctions against publication. In some cases, these injunctions even bar newspapers from acknowledging the existence of the court order.

Even before the European court ruling on Tuesday, however, such injunctions were being undermined by a force that is arguably more powerful than British privacy law: the Internet.

Since the weekend, Twitter has been abuzz with speculation about public figures who may have obtained such court orders. An unidentified user of the service posted six short messages in which he or she listed well-known soccer stars, actors and others who had supposedly received injunctions preventing the press from reporting on suspected affairs.

By Tuesday evening, the Twitter feed had attracted about 80,000 followers.

British newspapers have been lobbying against the use of these injunctions, denouncing them as one of a number of perceived threats to freedom of speech in Britain, along with the country’s tough libel laws.

“Highlighting the perceived evils of British privacy and defamation law certainly seems to be paying off for Fleet Street,” said Amber Melville-Brown, a media specialist at the law firm Withers in London.

The government recently introduced legislation to overhaul the defamation laws. On Tuesday, officials said they were considering changes to the privacy laws, too, in an effort to bring them into the digital age.

“We are in this crazy situation where information is available freely online that you are not able to print in newspapers,” Jeremy Hunt, the British culture secretary, said. “We are in a situation where technology, and Twitter in particular, is making a mockery of the privacy laws that we have, and we do need to think about the regulatory environment. It should be Parliament that decides where we draw the line on our privacy law.”

While Internet forums like Twitter, under European Union law, have generally not been held accountable for the information posted on them, individuals can be sued for comments that are libelous or that invade others’ privacy. But Twitter, like many other big Internet companies, is based in the United States, putting it outside British jurisdiction.

“People blogging and reporting online are subject to the same laws,” Ms. Melville-Brown said. “It’s just a question of enforcement.”

In his case before the European court, Mr. Mosley, the former president of the International Automobile Federation, argued that British media laws violated the European Convention on Human Rights by failing to protect him from intrusions into his private life. He sought a requirement that newspapers and other media give the subjects of their articles a chance to respond before the papers appeared on the newsstand.

The court rejected Mr. Mosley’s claim, saying there were already sufficient privacy protections in place in Britain.

“Although punitive fines and criminal sanctions could be effective in encouraging prenotification, that would have a chilling effect on journalism, even political and investigative reporting, both of which attracted a high level of protection under the convention,” the court wrote. “That ran the risk of being incompatible with the convention requirements of freedom of expression.”

Mr. Mosley said he planned to appeal the decision to the Grand Chamber of the Strasbourg court.

 

European Court Rejects Bid to Limit News on Celebrities

The European Court of Human Rights in Strasbourg, France, on Tuesday struck down a legal bid to strengthen the privacy protections for public figures. At the same time, individuals have been turning to the Internet to circumvent British reporting restrictions that protect these figures, turning Twitter into a sort of WikiLeaks for celebrity tell-alls.

In the Strasbourg decision, the European court rejected a bid by Max Mosley, former president of the governing body of Formula One auto racing, to require news organizations to notify the subjects of articles before publication. The court said such a requirement would have had a “chilling effect” on freedom of speech.

The lawsuit stemmed from a 2008 article in The News of the World, a racy British tabloid, with the headline “F1 boss has sick Nazi orgy with 5 hookers” and was based on video shot secretly by one of the participants.

Mr. Mosley, a son of Oswald Mosley, former leader of the British Union of Fascists, sued The News of the World, saying the paper had not bothered to check the story with him before publishing. A British court called the article a flagrant invasion of Mr. Mosley’s privacy and fined the paper ￡60,000, or nearly $100,000. The court said there was no evidence of Nazi behavior in the sex session and thus no justification for publication.

When confronted by tabloids with similar exposés, or simply with allegations of garden-variety extramarital affairs, many British celebrities have gone to court to secure injunctions against publication. In some cases, these injunctions even bar newspapers from acknowledging the existence of the court order.

Even before the European court ruling on Tuesday, however, such injunctions were being undermined by a force that is arguably more powerful than British privacy law: the Internet.

Since the weekend, Twitter has been abuzz with speculation about public figures who may have obtained such court orders. An unidentified user of the service posted six short messages in which he or she listed well-known soccer stars, actors and others who had supposedly received injunctions preventing the press from reporting on suspected affairs.

By Tuesday evening, the Twitter feed had attracted about 80,000 followers.

British newspapers have been lobbying against the use of these injunctions, denouncing them as one of a number of perceived threats to freedom of speech in Britain, along with the country’s tough libel laws.

“Highlighting the perceived evils of British privacy and defamation law certainly seems to be paying off for Fleet Street,” said Amber Melville-Brown, a media specialist at the law firm Withers in London.

The government recently introduced legislation to overhaul the defamation laws. On Tuesday, officials said they were considering changes to the privacy laws, too, in an effort to bring them into the digital age.

“We are in this crazy situation where information is available freely online that you are not able to print in newspapers,” Jeremy Hunt, the British culture secretary, said. “We are in a situation where technology, and Twitter in particular, is making a mockery of the privacy laws that we have, and we do need to think about the regulatory environment. It should be Parliament that decides where we draw the line on our privacy law.”

While Internet forums like Twitter, under European Union law, have generally not been held accountable for the information posted on them, individuals can be sued for comments that are libelous or that invade others’ privacy. But Twitter, like many other big Internet companies, is based in the United States, putting it outside British jurisdiction.

“People blogging and reporting online are subject to the same laws,” Ms. Melville-Brown said. “It’s just a question of enforcement.”

In his case before the European court, Mr. Mosley, the former president of the International Automobile Federation, argued that British media laws violated the European Convention on Human Rights by failing to protect him from intrusions into his private life. He sought a requirement that newspapers and other media give the subjects of their articles a chance to respond before the papers appeared on the newsstand.

The court rejected Mr. Mosley’s claim, saying there were already sufficient privacy protections in place in Britain.

“Although punitive fines and criminal sanctions could be effective in encouraging prenotification, that would have a chilling effect on journalism, even political and investigative reporting, both of which attracted a high level of protection under the convention,” the court wrote. “That ran the risk of being incompatible with the convention requirements of freedom of expression.”

Mr. Mosley said he planned to appeal the decision to the Grand Chamber of the Strasbourg court.

 

Appellate Court Hears Defense of Health Law

The 14 members of the United States Court of Appeals for the Fourth Circuit, the first appellate court to review the law, are evenly divided as appointees of Democratic and Republican presidents. That puts the odds of drawing three Democratic appointees in the computerized lottery at roughly 10 to 1. Lawyers do not learn the makeup of the panel until the day of the hearing.

The party of the appointing president is not necessarily predictive of a federal judge’s leanings. But in five decisions in lower courts, three Democratic-appointed judges have upheld the Affordable Care Act while two Republican-appointed judges have ruled that its central provision — the requirement that most Americans obtain health insurance — is unconstitutional.

At Tuesday’s hearing in Richmond, the three Fourth Circuit judges — Diana Gribbon Motz, who was appointed by President Bill Clinton, and the two Obama appointees, Andre M. Davis and James A. Wynn Jr. — challenged both sides with pointed questioning. The hearing lasted more than two hours.

As in the lower courts, the judges focused on the novel question of how to define the choice not to buy health insurance: as commercial activity that the Supreme Court has ruled can be regulated, or as inactivity that is beyond Congress’s reach.

They also devoted considerable time to discussing whether Virginia’s attorney general had legal standing to challenge the insurance mandate, because it would impose a requirement on individuals but not on states.

Virginia stakes its right to sue on its enactment of a state law aimed at exempting residents from the insurance requirement, thereby creating a conflict with federal law.

“If you adopted this theory of standing,” argued Neal K. Katyal, the acting United States solicitor general, “you would allow, for example, a state that was opposed to the war in Afghanistan to say our citizens should be exempt and file a lawsuit on that basis.”

The Fourth Circuit panel heard the appeals of two challenges to the health care act that yielded opposite results late last year.

In one challenge, by Attorney General Kenneth T. Cuccinelli II of Virginia, Judge Henry E. Hudson of Federal District Court in Richmond ruled that by requiring most Americans to buy insurance — a commercial product — the mandate exceeded Congress’s authority to regulate interstate commerce. In the other, filed by Liberty University, Judge Norman K. Moon of Federal District Court in Lynchburg, Va., found that the mandate fell comfortably within “well-settled principles” set by the Supreme Court.

The Virginia health care cases are the first of four scheduled for appellate hearings during the next five weeks. The Court of Appeals for the Sixth Circuit, in Cincinnati, will hear arguments on June 1 in the appeal of a ruling upholding the law. A week later, the Court of Appeals for the 11th Circuit, in Atlanta, will hear the Obama administration’s appeal of a Florida judge’s ruling that invalidated the entire act. That judge suspended his ruling until appellate courts could hear the case.

It is widely anticipated that the Supreme Court will ultimately settle the matter, although it is not clear which of several cases it might take. That may depend on how and when the appeals courts rule.

If, for instance, the three-judge panel rules against Virginia, the commonwealth expects to appeal directly to the Supreme Court without requesting a hearing before the full Fourth Circuit bench, Mr. Cuccinelli, a Republican, said on Tuesday. But if the Fourth Circuit rules that Virginia does not have standing to challenge the law, the Supreme Court could wait for a case that gives it a more focused look at the central issues.

In Tuesday’s hearing, Mr. Katyal slightly shifted the emphasis in the government’s defense of the health law. He tried to steer the judges away from a semantic focus on whether a failure to buy health insurance constituted activity or inactivity, a question that has divided the lower courts.

Past Supreme Court decisions have backed Congress’s authority under the Constitution’s Commerce Clause to regulate “activities” that have a substantial effect on interstate commerce. But the court has never considered whether the term can be defined so broadly as to include decisions not to do something.

Mr. Katyal argued instead that the activity being regulated by the health care law is merely the means of payment by Americans who will inevitably enter the health care market and who will shift costs to others if they are not insured.

“Congress is not asking people to buy something they would not otherwise buy,” Mr. Katyal said.

Mathew D. Staver, the dean of Liberty University’s law school, disputed that assertion. The health care act, Mr. Staver said, “forces inactive bystanders into the stream of commerce.”

 

India court stays Ayodhya ruling

 9 May 2011 Last updated at 04:16 ET  The Babri Mosque was torn down by Hindu zealots in 1992 India's Supreme Court has suspended a ruling over the fate of the Ayodhya holy site, where Hindu zealots destroyed a mosque in 1992.

Last December the Allahabad High Court said the land should be divided and that the razed 16th Century Babri Masjid should not be rebuilt.

Hindu and Muslim groups appealed against that verdict, which the court on Monday described as "strange".

This case was launched well before 1992 and centres around who owns the land.

But the destruction of the mosque sparked off some of the worst communal violence in recent Indian history - nearly 2,000 people died in subsequent religious riots across the country.

In December's ruling the Allahabad court said that the site should be split, with the Muslim community getting control of a third, Hindus gaining control of another third and the remainder going to a minority Hindu sect, Nirmohi Akhara, which was one of the early groups to pursue a share of the land in the case.

On Monday, the Supreme Court put the judgement on hold, saying it was "strange". It also said that the division of the disputed land has "opened a litany of litigation".

Hindus claim the site of the Babri Masjid is the birthplace of their deity, Ram, and want to build a temple there.

Muslim groups have argued that the Allahabad court's ruling appeared to be based not on evidence but on the professed beliefs of Hindus.