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U.S.: Wait on health care review

The Obama Administration told the Supreme Court Monday evening that federal appeals courts are moving rapidly to review the constitutionality of the new health care law, so there is no need for the Justices to step in to decide the issue ahead of the lower courts.  Urging the Court to reject the state of Virginia’s plea for a ruling prior to any decision by the Fourth Circuit Court, the Administration’s new brief said Virginia had offered “no persuasive reason for this Court to proceed without the benefit of review by the courts of appeals.”

Noting that Virginia’s challenge is aimed only at the law’s mandate that virtually every American obtain health insurance by 2014, the Administration said: “There will be ample time before 2014 for this Court to decide whether to grant review in the normal course and, if it does so, to issue a decision.”  There is no chance the Court would hear the case in the current Term anyhow, the brief said, since Virginia has not asked that its request be expedited.

It is possible, the new filing said, that one of the cases now moving ahead in the appeals courts could be heard in the Term starting next Oct. 3.   The Fourth Circuit, the brief added, “is among the fastest courts of appeals,” and it already has set oral argument on two Virginia cases, including the state’s, for May 10.

The government also contended that Virginia’s quick appeal has none of the characteristics of prior cases in which the Court has granted review of an issue without waiting for appeals courts to resolve it.  Most of those involved true emergency situations, the brief asserted.

But, even if the Court were inclined to grant review of the health care controversy now, the brief said, the Virginia case would not be a proper one in which to do so.  There is, it argued, a basic question of whether Virginia even had a right to bring its court challenge to the insurance-purchase mandate, and that issue “could readily prevent the Court from reaching the merits” of the challenge the state has mounted.

Since Virginia is only challenging the insurance-purchase requirement, and since that provision only applies to individuals, not states, the brief said, Virginia has no right to go to court to stand in for its citizens when they are bound by the operation of a federal law.

Virginia’s reliance on a new state law, declaring that no Virginia resident can be required to have health care coverage, the brief argued, was only an effort to create a right for the state to go to court to contest the federal mandate.  No matter how Virgina phrased its objection to the federal mandate, the government asserted, its lawsuit raised only “abstract questions of political power, of sovereignty, of government.”

The brief noted that the government is contesting, in the Circuit Court, Virginia’s right to bring its challenge, and the Justices “would benefit from having that court’s considered views” on that before deciding whether to hear itself Virginia’s appeal.

Virginia will have a chance to reply to the government’s opposition before the Justices act on the case.  It is likely that the case will be scheduled for the Justices’ initial consideration late this month or in April.

Recommended Citation: Lyle Denniston, U.S.: Wait on health care review, SCOTUSblog (Mar. 14, 2011, 8:11 PM),