UPDATED Sunday 6:32 p.m.  The text of the U.S. brief can be found here.

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The Obama Administration has filed the last key document in the constitutional cases in the Supreme Court on the new federal health care law, urging the Justices not to grant review of Virginia’s attempt to get back into the controversy.  The Court, Solicitor General Donald B. Verrilli, Jr., suggested in a filing Thursday, should simply hold Virginia’s petition until after it rules on other pending cases that the government wants reviewed.  (The SG’s reply brief is not yet available in electronic format.  It will be linked on the blog when it is.)

With this filing, all six pending petitions are ready for the Court’s consideration, but the Virginia case has not yet been set for Conference; the other five are due for the Court’s initial consideration at the November 10 Conference.  Conceivably, Virginia’s could be added to that list, or simply be left on the docket without action.

The state of Virginia — the first challenger to go to Court against the new law’s mandate that virtually all Americans have health insurance by 2014 — has been put out of the case by a Fourth Circuit Court decision.  The state, the Circuit Court concluded, cannot show that it would suffer any harm as a result of the insurance mandate, so it lacks “standing” to be in court as a challenger to that provision.

Virginia has contended that it does have “standing” to sue — and it repeated that in its petition to the Supreme Court (Virginia v. Sebelius, docket 11-420) — by arguing that it needs to defend a state law that seeks to insulate residents of the state from having to buy health insurance.  The Circuit Court dismissed that contradictory state law, passed explicitly in order to set up a court contest with the federal law, as a statute that “regulates nothing and provides for the administration of no state program.”  Its only purpose, the Circuit panel said, was to seek to immunize Virginia citizens from federal law, and a state has no power to do that.

The reply by the Solicitor General agreed with the Circuit Court’s conclusion.   It is clear from past Supreme Court rulings, General Verrilli argued, that a state cannot sue to insulate its citizens from federal laws, and he noted that Virginia was not contending that it could.  But the state’s theory behind its challenge, that it seeks to vindicate its own law, does not make any difference to its “standing,” Verrilli contended.  The insurance mandate still applies only to individuals, not states, and only those individuals could bring a challenge to defend themselves against the mandate, the government reply said.  All that the state law means, the filing said, was that Virginia was trying to “memorialize its litigation position in a statute,” as the Circuit Court had said of the law.

Granting Virginia’s petition, which also seeks to make a challenge on the merits to the insurance mandate, is not necessary for the Court to be able to rule on that claim, Verrilli said; it is raised in the other petitions that the government has urged the Court to grant, including one by the government itself.

Since it is clear that at least one individual, who has joined in one of the pending petitions, definitely has “standing,” the Solicitor General said that the Court will have a chance to rule on the mandate’s validity without having to decide whether the 26 states that have filed their own petition have “standing” to bring that challenge on their own.

It is possible, the reply brief went on, that the question of state “standing” will arise as the Court reviews the cases, but that can be addressed in the 26-state case, so that is an added reason not to hear Virginia’s petition.   The state right-to-sue issue could come up, Verrilli said, depending upon how the Court rules upon the potential impact on the mandate challenges of the federal Anti-Injunction Act.

That is a law that bars any court challenge to a federal tax provision before it actually goes into effect.  The Fourth Circuit, in a ruling separate from its decision on Virginia’s right to sue, had concluded that the Anti-Injunction Act bars the challenges to the mandate, on the premise that it is a federal tax provision.  In the 26 states’ petition, they argue that that Act does not apply to states.  While disagreeing with that argument, the Solicitor General said, the Court’s discussion of the scope of that Act’s reach might implicate the question of state standing to sue.

Posted in Cases in the Pipeline, Health Care

Recommended Citation: Lyle Denniston, Virginia challenged on health care (UPDATED), SCOTUSblog (Nov. 5, 2011, 5:49 PM), http://www.scotusblog.com/2011/11/virginia-challenged-on-health-care/