UPDATE Wednesday 4:10 p.m.  Virginia’s case is now scheduled to be examined by the Court at its April 15 Conference, according to an entry Wednesday on the Court’s electronic docket.

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Arguing that the dispute over the constitutionality of the new federal health care law easily ranks with major national controversies that the Supreme Court had stepped in quickly to decide, the state of Virginia on Tuesday renewed its plea for a decision by the Justices on the law without waiting for lower appeals courts to rule.  In a reply brief, the state’s lawyers argued that the entire nation faces “crippling uncertainty…until those issues are resolved.”  With this filing in Virginia v. Sebelius (10-1014). briefing is now complete, and the case could be scheduled for the Justices’ initial consideration as early as the April 15 Conference.

The state noted that the Obama Administration recently had opposed the fast-track plea by arguing that this was not one of the rare cases justifying immediate review.  To that, the state retorted: “If this case does not satisfy that standard, it is difficult to see what case ever could.”   The new brief included a link to a letter that 28 state governors had written to President Obama in February, urging the government to support swift review by the Court because of the burdens they said the states already faced under the new law.  (Five weeks after that letter was sent, the Administration told the Court it opposed review of the Virginia case before it is decided by the Fourth Circuit Court in Richmond.)

If the Court were to agree to Virginia’s request, it is conceivable that the case could be scheduled for review during the current Term, on a very much expedited briefing schedule, and with oral argument to be held sometime after the regular period for such hearings has ended in the final two weeks of April.  Otherwise, the case would go over to the next Term, starting Oct. 3.  Perhaps by then, some of the five federal appeals courts now considering challenges to the law will have ruled, since they are reviewing those cases on expedited schedules.

The state said that the new law cannot be upheld “unless the cases of this Court marking the affirmative and negative outer limits of the Commerce Clause are extended,” so only the Court could decide what those limits are.

To the Administration’s charge that Virginia’s state legislature had passed a law to protect its residents from having to buy health insurance, only to create a conflict with the federal law so Virginia could sue, the state’s lawyers countered that the state statute was passed before it was clear there would be a federal law, and, in any event, the state law is a comprehensive that seeks to exercise Virginia’s police powers.

To the Administration’s argument that there is a serious question about whether Virginia can show that it would be directly harmed by the new law any tme soon, the state countered that Administration lawyers had conceded in some of their court filings that the law already was having an impact because some of its provisions have gone into effect and face disruption if enforcement of the law is now blocked.

On the broader issue of whether the Virginia case is of sufficient moment to justify an extraordinary process in the Supreme Court, Virginia’s reply brief said that the new law is “an undertaking to regulate one-sixth of the American economy.’   It is “extravagant” for government lawyers to say the case does not measure up, the state said. “The national impact of resolving [the new law] piecemeal over a period of years dwarfs the impact threatened” by a new federal criminal sentencing law that the Court reviewed on a fast-track basis in 1989, the brief said.

Posted in Cases in the Pipeline, Health Care

Recommended Citation: Lyle Denniston, UPDATED: State presses health care case, SCOTUSblog (Mar. 22, 2011, 10:13 AM), http://www.scotusblog.com/2011/03/state-presses-health-care-case/