RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. Good morning. I'm Renee Montagne.
STEVE INSKEEP, host:
And I'm Steve Inskeep.
Few people doubt that the U.S. Supreme Court will make the final decision on the nation's health care law, but the way the case reaches the high court can matter.
MONTAGNE: And after a number of lower court rulings, the case is now in the hands of a federal appeals court.
NPR's Julie Rovner was listening to the arguments before three judges in Richmond, Virginia yesterday.
JULIE ROVNER: Even before the court proceedings got underway, supporters and opponents to the law gathered outside the federal courthouse on a busy downtown Richmond street corner.
Among those urging the judges to keep the law intact was Kevin Wilson. He owns two restaurants in Richmond and has already been able to take advantage of the law. Last year he started getting a small business tax credit that helps him pay for his employees' health insurance. That's helped his business in other ways.
Mr. KEVIN WILSON (Restaurateur): This has allowed me to reinvest in equipment and maintenance, which would have otherwise been impossible in this economy.
ROVNER: But across the street, opponents of the law held their own rally, sponsored by Americans for Prosperity and the Tea Party Patriots. Americans for Prosperity president Tim Phillips quoted the late President Gerald Ford as saying a government big enough to give everyone everything is also big enough to take everything away.
Mr. TIM PHILLIPS (President, Americans for Prosperity): And we want to make sure that the tradition of limited government in America is upheld. Are you with us on that?
(Soundbite of cheering)
Mr. PHILLIPS: You bet we are. You bet we are.
ROVNER: Inside the courtroom, meanwhile, the focus was also on limits, of a sort. The big question involved in both cases concerns the Constitution's commerce clause. It allows Congress to regulate commerce that moves between states. But can it be used to require virtually all Americans to have health insurance, or if not, to pay a penalty? Opponents say no.
Mr. MATTHEW STAVER (Chairman, Liberty Counsel): The government cannot point to any single case where idleness, a choice to not engage in an economic transaction, has been found reachable under the commerce clause.
ROVNER: That's attorney Matthew Staver. He argued the case on behalf of Liberty University in Lynchburg, Virginia. Liberty charged that the so-called individual insurance mandate is unconstitutional because Congress can't use the commerce clause to reach people who don't do anything; in this case don't buy health insurance. The judge in that case disagreed. He upheld the requirement and the law. And the judges on the appeals court panel, chosen at random, but all appointed by Democratic presidents, seemed likely to uphold the law as well.
Still, the Obama administration wasn't taking any chances. They sent to Richmond to argue the cases not just any lawyer, but the acting solicitor general, who normally only argues cases at the Supreme Court. And Neal Katyal drove his point home repeatedly. Health care is not like any other product. Everyone consumes it, whether they buy insurance or not.
Mr. NEAL KATYAL (Acting Solicitor General): That is a virtually universal feature of human existence. Everyone is going to seek health care. Nobody can know precisely when.
ROVNER: Of course that's not how opponents of the law, like Virginia Attorney General Ken Cuccinelli, see it.
Mr. KEN CUCCINELLI (Attorney General, Virginia): If we cross this constitutional line with health care now, where the government can force us to buy a private product and say it's for our own good, of course, then we will have given the government the power to force us to buy other private products such as cars, gym memberships, or today's chosen vegetable of discussion was broccoli.
ROVNER: Unlike Liberty University, Cuccinelli won his case at the lower court level. It involves a Virginia state law that forbids insurance mandates of the type in the federal law. But the three appeals court judges seemed skeptical about whether Virginia actually has legal standing to sue the federal government.
Walter Dellinger, a former U.S. solicitor general who's been advising Democrats in Congress, said he wasn't surprised and wouldn't be surprised if Virginia's suit gets dismissed on the standing issue alone.
Mr. WALTER DELLINGER (Attorney): Virginia can't come into court because this individual mandate doesn't apply to the state of Virginia, doesn't apply to the attorney general. And I think the court says you attorneys general don't have standing, the law doesn't apply to you. The law applies to individuals, and individuals could bring a lawsuit, but not the state.
ROVNER: The Fourth Circuit Court of Appeals, which heard yesterday's cases, is known for making its decisions quickly. That could mean weeks rather than months. Meanwhile, two other cases are headed for appeals court hearings in other parts of the country early next month.
Julie Rovner, NPR News, Richmond.