A three-judge panel in Virginia is questioning whether it has the legal authority to determine if the federal health reform law is constitutional.

Ken Cuccinelli

The U.S. Court of Appeals in Richmond, Va., is considering whether the Anti-Injunction Act, which prohibits court rulings on tax law before taxes are collected, also prohibits it from ruling on whether the individual mandate is legal, according to media reports.

The question is raised as the court explores two lower court rulings. One of the rulings, in a case where Lynchburg, Va.-based Liberty University challenged the law, found the Patient Protection and Affordable Care Act constitutional, while the other case, where a new Virginia law prohibits the imposition of the individual mandate on state residents, deemed the law unconstitutional. The two cases were consolidated by the court on appeal. The second appeal was filed by Ken Cuccinelli, Virginia’s attorney general.

The U.S. Justice Department, representing the Obama Administration in the appeals, argued that the Anti-Injunction Act should thwart the appeals, but in both cases lower courts rejected the argument.

If one court ruled it could not decide because of the tax law, then other courts might be required to follow the ruling, or they could act in another manner. Legal experts say the contradictory court rulings make it almost a guarantee that the U.S. Supreme Court will be the final arbiter in the case, but so far the high court has rejected calls for it to intervene.

The individual mandate is the key provision in the health reform law, forcing every American, starting in January 2014, to either buy health insurance or face a fine.

It remains unclear whether the health reform law could survive without the individual mandate because without it, insurance companies say, the risk pool is too small, meaning health care costs will soar.

The challenges are among more than 20 winding their way through the federal court system in the wake of the March 2010 passage of the landmark law.

Two other appeals, one in Cincinnati and another in Atlanta, are scheduled to be heard in June.