UPDATE Friday a.m.  The petition, Virginia v. Sebelius, has now been docketed as 10-1014.  The Obama Administration’s response is currently due on March 14, but it has the option of seeking more time to file.  It is expected to oppose review at this stage.


The state of Virginia on Wednesday urged the Supreme Court to gather up all of the constitutional challenges to the new federal health care law that are now pending in the federal appeals courts — or soon will be — and then decide every issue in one omnibus proceeding before the Justices.  The review, it stressed, should include the recent decision in a Florida case striking down every part of the new law, a case that is on its way to a federal appeals court but is not there yet.

The state’s main reason for asking the Justices to bypass not just one but at least four federal appeals courts, in order to get one final, nationwide and comprehensive ruling, was that conflicting rulings by four federal judges so far have already plunged the nation into deep uncertainty over a historically important policy and legal issue.  But another reason for that sweeping approach is to blunt an argument that the Obama Administration is expected to make in urging the Court not to get involved at this stage, and to let the issue play out in lower courts first.

That argument is that the Virginia case is one of the narrowest of the constitutional cases mounted so far against the new law, focusing on a contradictory law passed by just that one single state that significantly limits the impact of that case.   In obvious response, the state said, in effect, that if our case is narrow, the ultimate constitutional issue is not, and it is time now for the Supreme Court — the only source of a final answer — to address all issues at once.

Virginia’s own case, and a parallel lawsuit  by the Obama Administration defending the law, are now pending in the Fourth Circuit for expedited review, a Michigan case is on the docket (and has just been granted expedited treatment) in the Sixth Circuit, and a California case is awaiting a ruling in the Ninth Circuit.  In order for the Supreme Court to take on a case and rule on it before a federal appeals court does, such a case must actually be pending already in such a lower court.

The most sweeping decision issued so far on the new law’s validity is one issued by Senior U.S. District Judge Roger Vinson of Pensacola, Fla., in a case involving 26 states.   The Justice Department has said it will appeal that decision to the Eleventh Circuit Court, but it has not yet done so.  Virginia, however, on Wednesday urged the Supreme Court to add that case to its review, just as soon as the Department has gone ahead and filed its planned appeal in the Eleventh Circuit.

Virginia’s own petition for review raised four specific issues, but the body of the document went further, and urged the Court to grant review swiftly on every issue that has been raised in the lower courts about the law, just to make sure everything gets reviewed together.

The petition specifically asked the Court to resolve who has a legal right (“standing”) to challenge the new law in federal court, whether the new mandate that virtually every one in the nation must have health insurance by 2014 is unconstitutional, whether that provision is so central to the whole law that the entire measure cannot exist without it, and the federal government should be immediately barred from enforcing any part of the law.

Among other arguments Virginia made in trying to persuade the Justices to enter the fray now, it said that, for the first time in American history, more than a majority of all 50 states have mounted constitutional challenges to some or all of the new law.

The Justices are not expected to respond to the Virginia petition until after the Court hears from the Justice Department.

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, One giant health care case? (UPDATED), SCOTUSblog (Feb. 10, 2011, 3:38 AM), http://www.scotusblog.com/2011/02/one-giant-health-care-case/