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UPDATE: Virginia pondering own appeal on health care

UPDATE Friday p.m.   Virginia officials, disappointed that the Justice Department is not moving for prompt Supreme Court review of the health care mandate’s  constitutionality, are considering their own attempt.   Attorney General Kenneth Cuccinelli, in an op-ed column in Friday’s Washington Post, made a new plea for bypassing a federal appeals court, saying that  “simply too much is at stake.”  Cuccinelli’s aides have said that officials are leaning toward asking the Justices to take the case on without awaiting appeals court review, but have not yet decided.


The Justice Department, disagreeing with a strategy preferred by the state of Virginia, plans to go to a federal appeals court rather than directly to the Supreme Court when it appeals a federal judge’s ruling Monday against the new health insurance mandate.   The Department announced its intention to seek review initially in the Fourth Circuit Court in Richmond, according to various news accounts (see this report by the Reuters news agency on Tuesday).

Virginia’s Attorney General, Kenneth Cuccinelli, told reporters on Tuesday that, before the ruling came down, state officials had “initiated conversations with the Justice Department about fast-tracking the suit to the U.S. Supreme Court.”  He explained: “With this ongoing court battle, there is a great deal of uncertainty for states, individuals, and businesses as to whether this law will be around two years from now or not.  We need this resolved as quickly as possible — for the good of our people and our economy.”

Justice Department spokeswoman Tracy Schmaler was quoted in new stories as saying that the Virginia case involved a conflict between a Virginia state law and the new health care insurance mandate, “and the Department believes this case should follow the ordinary course of allowing the courts of appeals to hear it first so the issues and arguments can be fully developed before the Supreme Court decides whether to consider it.”  With the mandate not due to take effect until 2014, she added, “there is more than sufficient time for the courts to consider this case in their normal course of business.”

Virginia officials, while they had won their basic constitutional challenge to the mandate for nearly all Americans to obtain health insurance by 2014, did not win everything they had sought from U.S. District Judge Henry E. Hudson.  Under the Supreme Court’s Rules, the state would be free to try to get the case directly before the Supreme Court, bypassing the Fourth Circuit Court.  That might be more difficult to achieve, however, with the Justice Department now opting for the Circuit Court route.

While the Fourth Circuit has a reputation for moving quickly on most of its decisions, the Virginia case still might not be the first to reach the Supreme Court after going through a federal Circuit Court.

A case from Michigan, in which the District Court judge had upheld the insurance mandate, is already pending before the Sixth Circuit Court in Cincinnati (Thomas More Law Center,et al., v. Obama, Circuit docket 10-2388).  Under a schedule set by that Court, briefing is to be completed by Jan. 28.

The Justice Department is relying upon the Sixth Circuit’s schedule in asking a federal District judge in Ohio to put on hold any further proceedings in his Court against the health insurance mandate.  The judge has not yet acted upon the request; that case is U.S. Citizens Association, et al., v. Sebelius, et al. (District Court docket 10-1065).

Also moving on a fairly rapid schedule is an appeal pending in the Ninth Circuit Court — Baldwin, et al., v. Sebelius, et al. (Circuit docket 10-56374).  Briefing in that case is expected to be completed by Feb. 9.

Attorneys in the Baldwin case had attempted to get the Supreme Court to take on that case, bypassing the Circuit Court.  However, the Justices refused to do so on Nov. 8 in Baldwin, et al., v. Sebelius, et al. (Supreme Court docket 10-369).  The Justice Department had waived a response to that petition.

It is quite rare for the Court to hear a case before an appeals court has had a chance to rule on it.

Recommended Citation: Lyle Denniston, UPDATE: Virginia pondering own appeal on health care, SCOTUSblog (Dec. 15, 2010, 9:47 PM),