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Health care: Appeal briefing set

The dueling appeals by the Obama Administration and the state of Virginia over the constitutionality of the new federal health care law will proceed in the Fourth Circuit Court on a briefing schedule that will run through early May, under an order the Circuit Court issued Friday.   That will put it significantly behind another Virginia case, already pending in that Circuit Court.

The state of Virginia’s attorney general has been pondering a decision on whether to try to bypass the Circuit Court, and take the dispute directly to the Supreme Court — a move that would require the Justices’ permission.  The briefing calendar just issued probably raises the prospects that Virginia will attempt that maneuver.  Virginia Attorney General Kenneth Cuccinelli has been perhaps the most energetic challenger of the new law’s health insurance mandate, and has argued publicly that the issue needs to get resolved as soon as possible.

The Administration and Virginia are pursuing simultaneous challenges in the Fourth Circuit to the ruling in December by District Court Judge Henry E. Hudson of Richmond, striking down the insurance mandate.   On Thursday, the Circuit Court consolidated the two cases, with the government appeal designated as the lead case.  That case is Sebelius v. Virginia (Circuit docket 11-1057); Virginia’s case is Virginia v. Sebelius (docket 11-1058).

On Friday, the Circuit Court issued a briefing order (found here) that will proceed in this way:  the Administration’s opening brief will be due March 2, Virginia’s response is due April 4, and the Administration’s reply is due May 9.    No oral argument date has been set.  If oral argument is held, the government will go first.

The other Virginia case already moving forward in the Fourth Circuit is Liberty University v. Geithner (docket 10-2347).  In that case, a different federal judge in Virginia upheld the insurance mandate.  Liberty University’s opening brief was filed last Tuesday.  The Administration’s response is due Feb. 18, and a reply brief is allowed 14 days aftrer that.  Oral argument has not been set for that case, either.

Recommended Citation: Lyle Denniston, Health care: Appeal briefing set, SCOTUSblog (Jan. 23, 2011, 7:32 PM),