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Health care appeal moved up

The Fourth Circuit Court on Wednesday moved up the schedule for its review of two cases testing the constitutionality of the new federal health care law, and set them for back-to-back hearing in May.  That indicates that the cases are likely to produce rulings at the same time, in an appeals court that is known for moving with dispatch.

The Court reacted to joint requests from both sides in the two cases to set a hearing date for the period May 10-13, and by both sides in the later-filed case to advance the briefing schedule in order to allow hearings on the same date.  It was unclear whether the same three-judge panel will hear both cases, as all of the parties had requested.  It simply said that the cases would be heard “seriatim” on the same day.

One of the two cases involves appeals by both the federal government and the state of Virginia, contesting different parts of a Virginia federal judge’s December ruling striking down the new law’s mandate for health insurance, but refusing to block government enforcement of that provision and refusing to strike down the entire law.  That is the case of Sebelius v. Virgina (Circuit docket 10-1057).

Virginia’s attorney general said in a news release Wednesday that the state was still considering “whether or not to request that the U.S. Supreme Court take the case directly and skip the Fourth Circuit altogether.”

Earlier in the week, the Circuit Court had set a briefing schedule in the Virginia case that would have been completed sometime in mid-May.  On Wednesday, as requested by both sides, the Court ordered the government’s opening brief to be filed by Feb. 28, and with all briefing to be completed by April 18 — several weeks earlier. (The new briefing order is here.)

Meanwhile, the Circuit Court, in the other case (Liberty University v. Geithner, docket 10-2347), issued a scheduling order setting the hearing date for May 10-13 and ordering the argument to be on the same day as in the Virginia case.  In the Liberty University case, a different federal judge in Virginia had upheld the insurance purchase mandate.  Briefing has already started in that case, and is due to be completed by early March.

In motions filed in the two cases, the two sides used the same language: “The constitutionality of the Affordable Care Act has public policy implications of the highest magnitude.”  The two motions also contended that, “because of the importance of the issues presented,” all sides asked that the cases be heard on the same day by the same panel.  (The joint motion in the Virginia case is here, and in the Liberty University case here.)

Recommended Citation: Lyle Denniston, Health care appeal moved up, SCOTUSblog (Jan. 26, 2011, 7:10 PM),