The state of Virginia, seeking to revive its constitutional challenge to a key part of the new federal health care law, asked the Supreme Court on Friday to rule that the state has a right to be in court.   This is the fifth of the petitions seeking review of the new law’s mandate that virtually all Americans must have health insurance by the year 2014.  Virginia is the only challenger now at the Court to have been denied ”standing” in lower courts.  Its petition, with a lengthy appendix, is here 

Virginia’s challenge to the insurance mandate, unlike that of others who have appealed, is tied to a state law that declared that no resident of the state could be compelled to obtain a health care policy, as required by the federal law.  The legislature passed it in anticipation of Congress’s enactment of the health care law, and, relying upon its statute, Virginia was the first to file a federal court case against the mandate.  The Fourth Circuit Court, however, ruled last month that Virginia had no basis for challenging the mandate,; it found that the  provision imposed no burden at all on the state.

The Circuit Court said that the mandate is imposed on individuals, not on states.  It also found that the Virginia law seeking to head off the mandate actually had no enforcement mechanism, so the law did not clash with the federal mandate.  The Circuit Court also ruled that a state has no power as a sovereign to nullify a federal law which acts durectly upon a state”s citizens, who are citizens of the federal system, too.

By denying Virgnia’s right to sue in this instance, the state’s petition argued, the Circuit Court “opened up a circuit split on state sovereign standing and erred in several fundamental and publicly important ways.” Among other points, the petition said, the decision deprived federal courts in the Fourth Circuit  “of one of their foundational and most important roles — that of arbiter of competing claims of federal and state power.”

In addition to raising the “standing” issue, Virginia also urged the Justices to strike down the insurance mandate on the merits, and to find that the entire new health care law cannot survive after that provision is nullified.

The Virginia petition, Commonwealth of Virginia, et al., v. Sebelius, does not yet have an assigned docket number.  Here are the docket numbers and the current status of the four other pending cases on the insurance mandate and the overall health care law:

** 11-117, Thomas More Law Center v. Obama, challenging a Sixth Circuit Court ruling upholding a federal judge”s dismissal of the case against the mandate.  The Obama Administration has filed its response to the petition, urging the Court to hold this case and to grant the federal government’s own petition for review.

** 11-393, National Federation of Independent Business, et al., v. Sebelius, challenging the Eleventh Circuit Court’s failiure to strike down the entire law after it had ruled the mandate unconstitutional.  The government’s response in this case is now due on October 28.

** 11-398, U.S. Department of Health and Human Services v. Florida, et al., a petition by the Obama Administration contesting the Eleventh Circui Court’s decision against the insurance mandate, and also asking the Court to order briefing on whether all of the challenges to the mandate are barred by the federal Anti-Injuncton Act.  The responses of the states and the business federation challengers are now due in this case on October 28.

** 11-400, Florida, et al., v. U,S, Department of Health and Human Services, an appeal by 26 states challenging the mandate and the Eleventh Circuit’s failure to nullify the entire law.  The federal government’s response is now due in this  case on October 31.

Although the Thomas More case is further along, procedurally, than the other cases, the Court would not be likely to act on it when it first considers it at a Conference, if it is inclined to pass up that case in favor of review of one or more of the others.  The case could show up on an early list for the Court’s Conference, perhaps even later this month, but that does not necessarily mean it would be acted upon at that time.

The Court, of course, has the option of granting one, a few, all, or none of  the cases.  But four factors work strongly in  favor of review: a significant federal law has been ruled unconstitutional by a lower court, there is a split among  the appeals courts on the constitutional issue, the U.S. government and more than half the states are pursuing appeals, and everyone involved agrees that the Supreme Court should rule on the  dispute, and do so promptly.   If the Court grants review of the contrroversy any time before middle to late January, the chances are strong that it would reach a final rulng before recessing at the end of the Term, likely in late June.

The state of Virginia, seeking to revive its constitutional challenge to a key part of the new federal healthc care law, asked the Supreme Court on Friday to rule that the state has a right to be in court.   This is the fifth of the petitions seeking review of the new law’s mandate that virtually all Americans must have health insurance by the year 2014.  Virginia is the only challenger now at the Court to have been denied ”standing” in lower courts.  Its petition, with a lengthy appendix, is here.

Posted in Cases in the Pipeline, Featured, Health Care, Merits Cases

Recommended Citation: Lyle Denniston, Another health care case filed, SCOTUSblog (Oct. 2, 2011, 6:31 PM), http://www.scotusblog.com/2011/10/another-health-care-case-filed/