RICHMOND, Va. - A three-judge appeals panel pressed hard on Tuesday on Virginia's standing to sue the federal government over its health law -- perhaps signaling they are seriously considering throwing the case out.
The three Democratic-appointed judges spent two hours hearing oral arguments in the case, the first of two major challenges to the health law to hit an appeals court.
Their ruling -- not expected for months -- could sway other courts.
“How on earth can there be standing?” asked one of the 4th Circuit judges, Andre Davis.
The law requires Americans to buy insurance by 2014 or pay a penalty. It was President Obama's signature policy and has been under attack ever since it was passed by Republicans who promise to do their best to rescind it or at least take away as much of its funding as possible.
In December, after a court challenge by Virginia Attorney General Ken Cuccinelli, U.S. District Court Judge Henry Hudson ruled the 2010 health law unconstitutional because it requires people to buy insurance. Tuesday's hearing centered on the federal government's appeal of the ruling.
The state of Virginia passed a law in March of 2010 saying no one could require Virginia citizens to purchase health insurance. Cuccinelli then used the state law as a basis to sue the federal government.
Davis asked the state’s solicitor general, Duncan Getchell, to define exactly how Virginia would enforce the state law besides suing in federal court.
Getchell said hypothetically an individual could sue an employer if health insurance was a requirement for employment. But Getchell later said no one was violating the statute.
Davis said that sounded more like a condition of employment, similar to employees having to wear a uniform. “I don’t see how it can be violated,” Davis said.
Other questions focused on the health law's individual mandate, which requires people to either buy health insurance or pay a penalty.
"How would you define activity?" asked Diana Gribbon Motz, one of the three judges.
"We are not in that ballgame," answered acting U.S. Solicitor General Neal Katyal, who said the major question is not whether Congress can regulate inactivity. "The question is financing," Katyal said.
Motz was appointed by President Clinton, while Davis and James Wynn were both appointed by President Obama.
The Obama administration’s decision to send the nation’s top lawyer to argue the appeal in Virginia is an unusual move that experts say indicates the White House is taking the issue very seriously.
A Florida District Court judge in January also ruled that the health law was unconstitutional in a separate, multi-state challenge.