The government's top lawyer will handle the first appeals court arguments on the constitutionality of the healthcare reform law – a sign of how seriously the administration takes lower court proceedings in a case with huge ramifications not only for the healthcare system, but for the 2012 election.
Acting Solicitor General Neal Katyal will defend the law's individual mandate on Tuesday when Richmond's Fourth Circuit Court of Appeals takes up two challenges to the law. Court watchers say it's highly unusual for the government's highest ranking lawyer to be arguing a case before it reaches the Supreme Court.
The Supreme Court is expected to rule on Democrats' signature domestic achievement by the summer of 2012, handing Republicans a powerful weapon in a presidential year if it strikes down the mandate or even the entire law. Two district court judges have ruled the requirement that all Americans have insurance is unconstitutional, while several others have upheld it.
Barnett is on the legal team for the National Federation of Independent Business in the 26-state lawsuit filed in Florida. He said it makes sense for the government to have the "cream of the crop" engaged in a lawsuit that has captured the public's interest like few other cases.
A ruling in favor of the mandate would result in a "major expansion of federal power," he said. "The other thing that makes this bigger than most cases is that the general public is aware of this case – all of these [healthcare reform ] cases – much more than they usually are. Usually the general public doesn't know about a case until it gets to the Supreme Court."
The Richmond court on Tuesday will hear arguments in both Virginia Attorney General Ken Cuccinelli’s lawsuit, filed the day the law was enacted, and Liberty University’s challenge, which also raises First Amendment issues. Appeals courts in Cincinnati and Atlanta are scheduled to take up similar cases over the next few weeks, before the Supreme Court gets involved in October at the earliest.
Katyal is best known for his central role in defending Guantanamo Bay detainees in a 2006 case where the Supreme Court struck down the Bush administration's plans to hold military commission trials at the prison. Katyal was considered a top candidate to become Solicitor General after the former solicitor, Elena Kagan, joined the Supreme Court, but President Obama passed him over because of concerns that he wouldn't be confirmed. Katyal is expected to go back to Georgetown this fall if the nominee, White House lawyer Donald Verrilli, gets approved by the Senate Judiciary Committee.
Lyle Denniston, a reporter who has been covering the courts for 52 years, said the Richmond court might end up ruling on two separate issues: the fate of the individual mandate, and the question of whether Virginia even has legal standing to challenge the law.
Cuccinelli asserted the provision violates a state law that forbids such a mandate, but that argument is being challenged.
Denniston praised Katyal as an outstanding lawyer. But he cautioned that the court's decision will boil down in part to "luck of the draw" when the three judge panel that will hear both cases is announced.
"You might be a very good lawyer for the federal government and you might be doomed," Denniston said. "Because if you get a panel made up of conservative judges, they may be strongly against what the government has done."
Barnett agreed, but said part of what makes a good lawyer is the ability to persuade judges that ruling in the lawyer's favor wouldn't violate the judge's judicial philosophy.
"It might require considerable skill to explain to (judges) why they're allowed to rule a certain way," Barnett said. "We're spending a lot of time trying to figure out how to explain this to judges who might otherwise be sympathetic why they should vote for us. We can't take their vote for granted."
He said it makes sense to have the top lawyer involved early on.
"Neal will get experience as he goes along and his arguments will get better and more refined as he goes from court to court," Barnett said. "I think it's a nice idea for the government that he gets the continuity."
Katyal has already had one major victory. He argued against Cuccinelli's motion to skip the circuit court process, which the Supreme Court turned down last month.
"The constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance," Katyal argued. "This case is not, however, one of the rare cases that justifies deviation from normal appellate practice and requires immediate determination in this court."
The opposing lawyers are Mathew Staver, counsel for Liberty University, and Virginia Solicitor General E. Duncan Getchell, Jr.