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No action on health care (UPDATED 12:25 p.m.)

UPDATE 12:25 p.m.  The Virginia petition has been re-listed for consideration at this Friday’s Conference, according to the Court’s docket.


The Supreme Court on Monday left unresolved, at least for the moment, the fate of the state of Virginia’s attempt to get the Justices to rule on a very fast track the broad challenge to the constitutionality of a key feature of the new federal health care law.  The plea by the state to take up the validity of the new mandate to buy health insurance, before any federal appeals court rules on it, was before the Justices at their Conference last Friday, but no order on it came out with the Monday list.  The case is Virginia v. Sebelius (10-1014).

The Court usually does not explain its failure to act on a case that it had considered in Conference, and it is unclear whether the case will be put before the Court again at its next private session, this Friday.  It is conceivable that the Court has voted to deny “certiorari before judgment” (the technical description of the state’s plea), and that someone is taking time to prepare a comment or dissent from such a denial.  That would only become known if and when an order comes out in the case.

Virginia has an appeal in the case pending in the Fourth Circuit Court in Richmond, Va. (along with a government appeal), and the Circuit Court has scheduled oral argument on those appeals, now combined, for May 10.  The chances are that, even if the Supreme Court were to agree to hear Virginia’s expedited plea, the Justices might not have decided it in advance of a ruling by the Circuit Court, which has a reputation for moving quite rapidly.  The Justices are scheduled to complete oral argument this Term on April 27, so there appeared to be little likelihood they would schedule the Virginia case for argument this Term, although that would have been an option open to them.

A federal judge in Richmond has struck down the insurance-purchase mandate in the new health care law (which is not due to take effect until 2014), but has refused either to explicitly bar the government from enforcing it while the appeals go forward, or to strike down any other part of the huge law, which has more than 400 separate provisions.  U.S. District Judge Henry E. Hudson ruled that the insurance mandate was beyond Congress’s legislative powers, because it was an attempt — the first in history, the judge contended — to regulate “inactivity” (the refusal to do something) as opposed to “activity” (engaging in some specific conduct).

Virginia has taken to the Fourth Circuit the parts of Judge Hudson’s ruling on which it lost, and the Obama Administration has appealed on the insurance mandate issue.

Five other federal Circuit Courts are moving ahead with appeals involving challenges to the new health care law.  One or more of those cases is sure to reach the Court in time for review at its next Term, starting Oct. 3.  Almost every one involved in the various cases has agreed that the controversy sooner or later will have to be resolved by the Supreme Court.

Recommended Citation: Lyle Denniston, No action on health care (UPDATED 12:25 p.m.), SCOTUSblog (Apr. 18, 2011, 10:04 AM),