UPDATE: The Justice Department issued a reaction to the Virginia announcement, indicating it prefers to let the appeals court proceed.

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Virginia Attorney General Kenneth T. Cuccinelli II announced Thursday that he will seek an immediate appeal to the Supreme Court on the constitutionality of the new federal health care law, bypassing review in the federal appeals courts.  In a press release issued in Richmond, the state’s top legal officer said that no case can have “public policy implications more important than this case….That reinforces the fitting nature of our request for immediate review in the Supreme Court.”

The Supreme Court’s Rules permit such a bypass procedure, in cases of “imperative public importance.”  The Court, however, does not often grant permission to actually do so.   The issue is entirely within the Justices’ discretion.  In recent years, the Court granted such immediate review in 2002 in the University of Michigan undergraduate admissions standards case (Gratz v. Bollinger, docket 02-516) and in one of the cases testing the constitutionality of the mandatory guidelines for federal criminal sentences (U.S. v. Fanfan, docket 04-105).  In  both instances, the Court took a second case to be heard along with another case that had reached the Court via the normal route.

While Cuccinelli noted that the immediate appeal route “is the exception to the general rule,”  he argued that the Virginia case and other cases pending in lower courts “are truly exceptional in their own right.”   He said that 28 states have filed suits challenging Congress’s authority to enact the law, and federal District Court judges have split 2-2 on that issue.

The judge in the state of Virginia case struck down the law’s mandate that virtually everyone have health insurance by the year 2014, and a federal judge in a case in Florida brought by 26 states on Monday struck down the entire law.  Another federal judge in Virginia and one in Michigan have upheld the insurance-purchase mandate.

Even though Virginia won its challenge in the District Court, that does not bar it from asking the Supreme Court to take on the case prior to any ruling on it by the Fourth Circuit Court. Both Virginia and the Justice Department are pursuing appeals in that Circuit Court, challenging the Dec. 13 ruling in the Virginia case by District Judge Henry E. Hudson of Richmond.

The Circuit Court is considering those appeals on an expedited basis, but it will not hold a hearing on them until about mid-May.  In the meantime, Cuccinelli said his legal team would prepare the papers for the immediate appeal to the Supreme Court, and file them “as soon as is practicable.”

If the Justices were to grant immediate review, that would put the Fourth Circuit appeals on hold in the meantime.

It is unclear at this point whether, even if the Justices were to allow Virginia’s prompt appeal, they would rule on it during the current Term.  The Court’s argument calendar for the Term is filled, and it is now too late to hear any other cases during the the Term, unless, of course, such a case were significantly expedited.

In discussing Virginia’s plan to ask the Justices to step in now, Cuccinelli said that the state’s governor and other top state officials had asked his office to pursue that step.  The governor, he added, “is particularly concerned about the possibility of wasting precious and strained taxpayer dollars preparing for a law that may well be struck down.”

While he said that the Justice Department had indicated that it would not join in the move to the Supreme Court, he noted that the Department in urging the Fourth Circuit to put the cases there on an expedited schedule had asserted that the dispute over the law’s constitutionality “has public policy implications of the highest magnitude.”

Cuccinelli’s decision was announced one day after the U.S. Senate turned back an attempt by Republican leaders to repeal the entire health care law — at least temporarily ending that legislative maneuver.  The failure of that effort puts enhanced importance on the challenges made in nearly two dozen cases in federal courts across the country.  The Supreme Court may ultimately have to decide the constitutional issue, even if it does not intervene promptly.

It apparently would take the votes of only four Justices to grant review before the Circuit Court rules.  In an order in November refusing to hear the first case brought to it on the new health care law, the Court indicated that all nine Justices had taken part.   (That case, too, was an attempt to get the new law before the Court prior to a Circuit Court decision. The case was Baldwin v. Sebelius, 10-369.  In that case, however, there was no final ruling in the District Court on the merits of the constitutional challenge.)

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, Immediate appeal set on health law, SCOTUSblog (Feb. 3, 2011, 9:41 AM), http://www.scotusblog.com/2011/02/immediate-appeal-set-on-health-law/