WASHINGTON — President Obama's health care law faces a series of challenges in three appeals courts starting today as Republican lawyers from 27 states urge the courts to strike down the law as unconstitutional.
In a sign of the high stakes and the partisan divide, one case will feature a rare courtroom clash between the Obama administration's top appellate lawyer and his counterpart from the George W. Bush administration.
At issue is whether the government can require virtually all Americans to have health insurance by 2014 or pay a small tax penalty.
Democrats said the mandate was needed to make sure that all who could afford to do so paid for medical insurance. Otherwise, they said, freeloaders would force hospitals and taxpayers to pay for them if they were badly injured or came down with crippling diseases.
Republicans who opposed the law called the mandate an unprecedented government meddling in private lives. It "would imperil individual liberty" and "sound the death knell" for the Constitution if the government can "compel" people to buy products, Paul Clement, the former Bush administration solicitor general, said in a brief last week.
Clement, 44, a former clerk for Justice Antonin Scalia, was recently hired by Republican state attorneys and governors from 26 states to argue for striking down the entire health care law. He will represent them before the U.S. 11th Circuit Court of Appeals in Atlanta in early June.
On the other side will be acting Solicitor General Neal Katyal, who will also clash with lawyers from a 27th state — Virginia — before the U.S. 4th Circuit Court of Appeals in Richmond.
If either U.S. appeals court decides the law is unconstitutional, Obama's lawyers will have to persuade the Supreme Court to reverse the ruling and to uphold the law. The legal battle in the high court would likely play out next year while the presidential campaign is under way.
So far, the legal fight has mirrored the partisan split over health care. Five district judges have ruled on legal challenges. Three Democratic appointees upheld the law, while two Republican appointees ruled it unconstitutional.