Kevin Walsh on the Mandate Argument in the Fourth Circuit

My friend and Richmond lawprof Kevin Walsh attended the oral arguments this morning in the Fourth Circuit’s mandate cases, and he passes on this report:

It was a long morning for everyone, but it appeared to be a good morning for the federal government. Judge Motz, presiding, allowed the first lawyer to speak (counsel for Liberty University) to use as much time as he wanted, subject only to the condition that the federal government would receive an equal amount of time. He ended up using 45 minutes, more than double the 20 minutes allotted. All three judges on the panel (Judge Motz, Judge Davis, and Judge Wynn) appeared more skeptical of the challengers’ arguments and more accepting of the federal government’s. Some of the questions directed toward the federal government seemed designed more to figure out how to write an opinion upholding the individual mandate, rather than whether to uphold it. Most of the argument and questioning in Virginia’s case (second to be argued) focused on jurisdiction. Acting Solicitor General Katyal encountered very little resistance to his argument that Virginia’s Health Care Freedom Act did not provide the Commonwealth with standing to challenge the individual mandate. There was no mention of the possible absence of statutory jurisdiction.

The audio will be posted on the Fourth Circuit’s website at 2pm.