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Broccoli Question Debated in Health Care Appeal; Panel Appears Likely to Uphold Law

Posted May 11, 2011 6:35 AM CDT
By Debra Cassens Weiss

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A federal appeals panel made up of three Democratic appointees appears inclined to agree with the government’s defense of President Obama’s health care law.

In a hearing on a pair of cases on Tuesday, the appeals judges signaled they were likely to uphold the law, but to rule the state of Virginia had no standing to challenge it, according to coverage by the Washington Post, the Los Angeles Times, the New York Times and USA Today. At issue is whether Congress has power under the commerce clause to require people to buy health insurance.

The Richmond, Va.-based 4th U.S. Circuit Court of Appeals is considering two appeals. State officials were the plaintiffs in one case, Virginia v. Sebelius. A Christian college is the plaintiff in the other, Liberty University v. Geitner.

Judge Diana Gribbon Motz was first to raise the broccoli issue, according to USA Today. "There is a lot of talk in the papers about if Congress can do this, it can require people to buy broccoli," Motz said. "Could the Congress prohibit people from buying broccoli, or to make it more real-world, prohibit people from buying trans fats, because of its bad effects?"

Mathew Staver, the lawyer for Liberty University, said Congress could probably limit a product, but "to force the consumption of it is completely different."

The panel, selected by a computer program, consisted of two judges appointed by President Obama and one appointed by President Clinton. The full 4th Circuit is evenly split between Democrats and Republicans, making the odds of a panel with three Democrats about about 10 to 1, the New York Times says.

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