April 18 (Bloomberg) -- Ken Cuccinelli, the Virginia attorney general challenging President Barack Obama’s health-care overhaul, is quick to agree that his request for fast-track review by the U.S. Supreme Court is a long shot.
“It is,” Cuccinelli said. “But there’s so much money at stake for the states and for the private sector and there’s so much uncertainty produced in the economy because of this legislation that it was worth the ask.”
Cuccinelli’s bid, which asks the justices to consider the law’s constitutionality without waiting for an appeals court to rule, marks the first time a state challenge to the law has reached the nation’s highest court. The justices may act on the request as early as today.
Virginia is one of 27 states suing to overturn the law, contending that Congress overstepped its authority by requiring Americans to either obtain insurance or pay a penalty. Four federal appeals courts are poised to consider the issue in the coming months, and advocates on both sides of the issue say Supreme Court review is likely -- just not necessarily now.
“As important as the issue is in the long run, it’s hard to see the urgency,” said Edward Hartnett, a professor at Seton Hall School of Law and the co-author of a treatise on Supreme Court practice.
The step sought by Virginia, known as certiorari before judgment, is one the court has taken only a handful of times, including its 1974 decision ordering President Richard Nixon to turn over Oval Office tape recordings and its 1952 ruling blocking President Harry S Truman from seizing the nation’s steel mills.
The Obama administration argues that the health-care dispute doesn’t rise to that level of urgency, in part because the disputed provision won’t take effect until 2014. The justices generally prefer to let one or more appeals courts weigh in, helping to refine and shape the issues.
“The constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance,” acting U.S. Solicitor General Neal Katyal argued in court papers. “This case is not, however, one of the rare cases that justifies deviation from normal appellate practice and requires immediate determination in this court.”
U.S. District Judge Henry Hudson ruled in December that Congress’s authority over interstate commerce doesn’t give it the power to enact the insurance mandate. The administration is appealing that ruling to a federal appellate court in Richmond, Virginia, and Cuccinelli is seeking to bypass that step.
Cuccinelli says his state alone is spending between $20 million and $30 million preparing to implement the law. The measure calls on states to set up exchanges where residents can buy insurance.
“You’re really talking about enormous amounts of money that are being spent just administratively to prepare for a law that may not be in place,” Cuccinelli said.
Katyal countered that Virginia has received a federal grant to cover its planning costs and is eligible to apply for another grant to establish an exchange.
Even if the court rejects Cuccinelli’s petition, the justices may still take up the law in time to rule before the 2012 election, during the nine-month term that starts in October. Three of the appeals courts are operating under expedited schedules, creating the likelihood of rulings later this year that would be ripe for Supreme Court review.
In the Virginia case, the appeals court is scheduled to hear arguments on May 10. The panel will review Hudson’s ruling and a different judge’s decision upholding the law.
Another appeals court, based in Cincinnati, will consider the issue on June 1, and a third, based in Atlanta, will hear arguments on June 8 in a case involving the other 26 states challenging the law. An appeals court in Washington will consider the matter later this year.
“It is possible that one of those cases could be heard next term in the normal course,” Katyal told the justices.
In November the court turned away a challenge to the health-care law by a California man and interest group that likewise sought to bypass the appellate level.
The Supreme Court’s handling of the Cuccinelli petition may provide hints as to how the court will ultimately rule. Although the justices typically issue nothing more than a one-line order when they refuse to hear a case, one or more justices might take the opportunity to issue a statement, perhaps dissenting from the decision not to hear the appeal.
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.
Opponents of the health plan say it 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.
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 case is Virginia ex rel. Cuccinelli v. Sebelius, 10-1014.
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