Today the U.S. Fourth Circuit Court of Appeals heard two cases challenging the constitutionality of the federal health care law. One, Liberty University v. Timothy Geithner, was on appeal by the college, which lost its case in Federal District Court for the Western District of Virginia. The other, and more well known case, Commonwealth of Virginia v. Kathleen Sebelius, was on appeal by the federal government because Judge Henry Hudson in the Eastern District of Virginia, ruled the law unconstitutional late last year. The Fourth Circuit includes all of Virginia (as well as other states) so both appeals were heard at its courthouse in Richmond. As appeals are heard by three judge panels and since one panel within a circuit court cannot overrule another, the same panel heard both cases. Selection of the three judges, according to the court, was done at random by a computer system. Its picks were Judges Dianna Gribbon Motz, Andre Davis and James Wynn, Jr. — two appointed by President Barack Obama and one by President Bill Clinton. Mathew Staver, Dean of the Liberty University School of Law and lead attorney for Liberty Counsel; Duncan Getchell, Solicitor General for the Commonwealth; and Acting United States Solicitor General Neal Katyal argued the cases. The judges heard the Liberty case first and despite a straightaway-launch into skeptical questioning of Mr. Staver, they were at least as difficult on Mr. Katyal. It made for a compelling debate, so much so that the scheduled 40 minute hearing was extended by Judge Motz to 1:24. It was gripping even for experienced court observers, not to mention for someone, like me, who has limited in-person exposure to high level jurisprudence.

Since it covered most of the merits of the cases in the first one (although the cases are being argued on slightly different grounds) the Virginia case only went nine minutes beyond the 40 scheduled, with most of the questioning on Virginia's standing to even bring the case. Interestingly, Mr. Katyal said Liberty had standing, even though that was partly the grounds for its loss, because as individuals and employers it had grounds to question the employer and individual mandates enforced by the law. Although the feds lost its motion to dismiss against Virginia, again argued that line of attack. Mr. Katyal alleged Virginia passed the Health Care Freedom Act in order to have standing to challenge the health care law and that if allowed to stand, any state could pass any law any time to challenge any federal law from which it wishes to be exempt. This clearly frustrated Mr. Getchell who argued it is an unquestioned right for states to pass laws. Unfortunately, Judge Davis would have none of this and clearly blustered partisan talking points rather than judicial prowess.

On the whole, the three judges, especially Motz and Wynn, seemed open minded. Judge Motz especially perked up each time one of the three lawyers cited the Comstock case, in which her opinion came down on the limited government side. Judge Wynn clearly had problems with several instances of federal twisted logic. For example, Mr. Katyal said the words in the law don't mean what they say in the penalty provision because it is a tax even though the word tax is never mentioned in the law; and that the law does not regulate inactivity because deciding not to purchase insurance is an activity and that forcing people to buy insurance only is an "upfront payment" for a service it will use eventually. So, there was at least an appearance that the judges, despite their political pedigree, were open minded. (Prediction: 2-1 for ObamaCare.)

But here's a theory: Does Attorney General Ken Cuccinelli want to win at this stage? If he does, the feds surely will appeal to the entire Fourth Circuit. That will delay a trip to D.C. for a date with the Supremes by months, even a year. If Virginia loses, he can appeal directly to the U.S. Supreme Court, where its jurisprudence may well favor voiding the law. Remember, he attempted an extraordinary expedited appeal there and was greeted with some sympathy. He wants to get there as soon as possible. So, Virginia is in a good position: If it wins, with at least two Democrat appointed judges siding with it, the feds don't have much chance en banc, either. One caveat: If Virginia loses on the question of standing, he would have to appeal that first, in essence to win permission just to continue the suit. That's what was dangerous about the direction of the argument in the Virginia hearing. Ironically, it could be the Liberty lawsuit that could win the day, based on the intensity and skepticism of the questions to Mr. Katyal. We shall see.

Now, here's a treat. Below is are links to the audio of each case. Click and enjoy your online legal education. Its worth the listen.

Liberty University v. Timothy Geithner (1:24)

Commonwealth of Virginia v. Kathleen Sebelius (:49)