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Virginia health care hearings set

The Fourth Circuit Court on Thursday scheduled oral argument for Tuesday, May 10, for cases testing the constitutionality of the new federal health care law — focusing especially on the law’s requirement that virtually all Americans must obtain health insurance by 2014.  In an order issued in one of the cases, Liberty University v. Geithner (Circuit docket 10-2347), the Court noted that its hearings normally allow 20 minutes per side.

Under a Jan. 26 order of the Circuit Court, the Court — apparently the same panel — will hold a second hearing right after the Liberty University case is heard.  That second hearing will be in the case of Sebelius v. Virginia (Circuit docket 11-1057).

Two diffeent federal judges in Virginia  had issued conflicting rulings in these cases — the judge in the Liberty University case upholding the insurance-purchase mandate, the judge in the Virginia case striking it down.   The Virginia case is a combination of separate appeals by the state of Virginia and by the federal government, with the federal government treated as the appealing party for procedural purposes.

The Virginia case grew out of a claim by the state’s attorney general that the health-purchase mandate conflicts with a Virginia state law that protects the state’s citizens from being required to obtain health insurance.

In a development that may complicate that case, a University of Richmond law professor, Kevin C. Walsh, has filed an amicus brief urging the Fourth Circuit to order that case dismissed, on the theory that the state’s challenge is not within federal court jurisdiction.  The Walsh brief, based upon research the professor has done, argued that the state is essentially seeking an advisory opinion on the validity of its state law, and Supreme Court precedents established that federal courts have no authority to issue any such rulings.

That challenge to jurisdiction has not appeared in the case at any point up to now.   The federal government also did not raise it in its opening merits brief in the Circuit Court, although a ruling to dismiss the case would clearly be in the federal government’s favor.

Meanwhile, the federal government is currently due to file a response by next Monday in the Supreme Court, to the plea by the state of Virginia that the Justices take up the state’s case without waiting for the Fourth Circuit to rule.  The case there is Virginia v. Sebelius (Supreme Court docket 10-1014).  The government almost certainly will oppose Supreme Court review at this stage.

Recommended Citation: Lyle Denniston, Virginia health care hearings set, SCOTUSblog (Mar. 10, 2011, 9:13 PM),