February 3, 2011
Virginia to Ask Supreme Court to Rule on Health Law
By KEVIN SACK

Virginia’s attorney general announced on Thursday that he hoped to bypass an initial appellate review by asking the United States Supreme Court to consider the constitutionality of the Obama health care law on an expedited basis.

Only rarely does the Supreme Court grant such hearings, and it has already rejected a similar request in another legal challenge to the health care act. But the commonwealth’s attorney general, Kenneth T. Cuccinelli II, said the legal and governmental confusion sown by conflicting lower-court opinions demanded a rapid resolution.

“Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that in the end may be declared unconstitutional,” Mr. Cuccinelli said in a statement.

In December, Mr. Cuccinelli became the first plaintiff to win a challenge to the health care act, when Judge Henry E. Hudson of Federal District Court in Richmond, Va., struck down a provision that requires most Americans to obtain insurance. The judge ruled that the insurance requirement exceeded Congress’s authority under the Constitution to regulate interstate commerce.

Two other federal judges, including another in Virginia, had previously upheld the law. Then on Monday, Judge Roger Vinson of Federal District Court in Pensacola, Fla., joined Judge Hudson in striking down the insurance mandate. But unlike Judge Hudson, Judge Vinson invalidated the entire law.

The law, enacted last year by a Democratic Congress and signed in March by President Obama, aims to cover 32 million uninsured Americans by ending insurer discrimination against those with pre-existing health conditions and by providing government subsidies to make coverage affordable.

The Justice Department, which is defending the Obama administration in the health litigation, has already filed a notice of appeal of Judge Hudson’s ruling in the Court of Appeals for the Fourth Circuit in Richmond. Because of the geographic distribution of the four lower court rulings, three different courts of appeal are likely to hear the cases on their way to the Supreme Court.

Tracy Schmaler, a spokeswoman for the Justice Department, said the agency continued “to believe this case should follow the ordinary course” so that legal arguments could be fully developed before being presented to the Supreme Court. She pointed out that the insurance mandate does not take effect until 2014 and that the Fourth Circuit has already expedited its schedule by setting oral arguments for May.

The Justice Department also is considering whether to seek a stay of the Florida decision in order to clarify confusion about whether the health care act remains in effect in the 26 states that are plaintiffs in the case.

Mr. Cuccinelli said he recognized that an expedited Supreme Court review would be exceptional. But he said that this case and the others challenging the constitutionality of the Patient Protection and Affordable Care Act, as the law is known, were “truly exceptional in their own right.”

In November, the Supreme Court refused to review another challenge to the health care act that had been dismissed by a California judge on grounds that the plaintiffs did not have standing to sue.

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