Legal News

The Cooch (Again) Presses for High Court Review of Health-Care Law

By Ashby Jones

The U.S. Supreme Court hardly ever takes appeals directly from district courts; they almost always stop first at an appellate court.

But Virginia Attorney General Ken Cuccinelli continues to try to convince the high court justices that they need to get involved in his challenge to the health care law before it goes to the Fourth Circuit. On Tuesday, he filed this brief with the justices as a reply to the government’s argument that there’s no reason to fast-track the case.

Click here for the story from Scotusblog; here for the story from the Virginia Pilot; here for all previous LB coverage of the constitutional challenges to the health-care law.

Government lawyers had said there is no reason to take the extremely rare step of "short-circuiting" review by appellate judges, which already has been accelerated.

Instead, the Obama administration has urged the Fourth Circuit to reverse the ruling, saying the requirement that all Americans purchase health care was well within Congress' powers to pass.

In his filing on Tuesday, Cuccinelli writes:

Rule 11 of the Rules of this Court provides that a petition for a writ of certiorari before judgment "will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." . . .

If this case does not satisfy that standard, it is difficult to see what case ever could. The issue is a pure question of law. Every district court that has reached the merits has rejected or declined to rule on the Secretary's taxing power argument while concluding that the claimed power under the Commerce Clause is novel or unprecedented.  Because PPACA cannot be upheld unless the cases of this Court marking the affirmative and negative outer limits of the Commerce Clause are extended, only this Court can definitively resolve that question.

So what happens now? According to Scotusblog’s Lyle Denniston, the case could be scheduled for the Justices' initial consideration as early as the April 15 conference.

He continues:

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.

Full post as published by Law Blog - WSJ.com on March 22, 2011 (boomark / email).