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Virginia to Ask Supreme Court to Hear Health Law Case

Virginia Attorney General Ken Cuccinelli
Kenneth "Ken" Cuccinelli, Virginia attorney general. Source: Office of the Attorney General of Virginia via Bloomberg

Virginia will seek expedited U.S. Supreme Court review of President Barack Obama’s health-care overhaul, asking the justices to take the rare step of considering the case without waiting for an appeals court decision.

Virginia Attorney General Ken Cuccinelli said today he will urge the high court to uphold a federal trial judge’s conclusion that Congress overstepped its authority by requiring Americans to either obtain insurance or pay a penalty.

Supreme Court experts said the court is unlikely to go along. The Justice Department said it would oppose immediate high court review, reducing the likelihood that the justices will agree to Virginia’s request.

“The department continues to believe this case should follow the ordinary course of allowing the court of appeals to hear it first,” said Tracy Schmaler, a Justice Department spokeswoman.

The Supreme Court has taken the step being sought by Cuccinelli, known as certiorari before judgment, only a handful of times in the past half century and generally only when the justices are simultaneously considering a related case that has cleared the appellate level.

Cuccinelli said the case was worthy of unusual treatment. A decision by the court to take up the case now would guarantee a ruling before the 2012 presidential election.

‘A Prompt Resolution’

“Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone’s best interest,” Cuccinelli said in a statement.

The chances of the court agreeing to hear the case in the face of government opposition are “zero,” said Carter Phillips, a lawyer in Washington at Sidley Austin LLP who has argued more than 60 Supreme Court cases.

Another top Supreme Court lawyer, Theodore Olson of Gibson Dunn & Crutcher LLP, said yesterday those prospects will be reduced by the opposition of the solicitor general, the Justice Department lawyer who serves as the government’s advocate at the Supreme Court.

‘Considerable Deference’

“If the solicitor general opposes cert before judgment, the justices of the Supreme Court certainly would accord considerable deference to his views,” said Olson, who served as solicitor general under President George W. Bush.

Olson said the public would be well served by fast-track consideration by the high court.

The court has granted certiorari before judgment twice in the last decade. In 2004 the justices agreed to consider the constitutionality of the federal sentencing guidelines using two cases, one of which came directly from federal trial court.

Similarly, in 2002 the justices accepted two appeals challenging race-based admissions policies at the University of Michigan. An appeals court had ruled in one of the cases and was holding off issuing a decision in the second.

The last time the court granted certiorari before judgment in a standalone case was in 1988 in another fight over the federal sentencing guidelines. In agreeing to hear that case, the Supreme Court pointed to “the disarray among the federal district courts.”

Insurance Mandate

U.S. District Judge Henry Hudson in December ruled that the insurance mandate was beyond Congress’s power to regulate interstate commerce. A federal appeals court based in Richmond, Virginia, is scheduled to hear the Obama administration’s appeal of that ruling in May -- alongside an appeal of a different judge’s decision upholding the law.

Separately, a federal judge in Florida this week declared the entire law unconstitutional in a challenge brought by 26 states. That case is on course to be reviewed by a different federal appeals court in Atlanta, although Utah Attorney General Mark Shurtleff said he wants to seek direct Supreme Court review.

A third appeals court, based in Cincinnati, is also poised to consider the law in the next several months.

The Supreme Court hasn’t directly considered a challenge to Congress’s power under the Constitution’s commerce clause since John Roberts became chief justice in 2005.

‘Compel an Individual’

Opponents say the health plan is unlike anything the Supreme Court has ever upheld because the law would require people to take action: either buy health insurance or pay a fine. Hudson said no Supreme Court or appeals court ruling authorizes Congress to “compel an individual to involuntarily enter the stream of commerce” by buying something.

The Obama administration argues that people who would opt not to buy insurance without the mandate will affect interstate commerce eventually -- and potentially impose costs on the government, insurers and hospitals -- when they seek emergency room or other medical services.

The administration also contends that the individual mandate is essential to the law’s goal of increasing health-care availability and affordability.

The government says that, without such a rule, people could forgo buying insurance until they became sick, at which point the new law would require insurers to provide coverage. The effect would be to eventually drive insurers out of business, the administration says.

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