As expected, Virginia Attorney General Kenneth Cuccinelli II on Tuesday night asked the U.S. Supreme Court to step into the legal controversy surrounding the constitutionality of the Patient Protection and Affordable Care Act.
Claiming that the act has “roiled America,” Cuccinelli, in a petition for review, said the states, citizens and the economy are “mired in uncertainty.”
“There is a palpable consensus in this country that the question of PPACA’s constitutionality must be and will be decided in this Court,” he wrote in Commonwealth of Virginia v. Sebelius. “Under these circumstances, the issues presented here should be considered to be at least as important as those presented in many of the cases where immediate review has been permitted under Rule 11 or its predecessors.”
Under Supreme Court Rule 11, a petition for writ of certiorari before judgment in a court of appeals 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.”
The Virginia challenge to the health care reform act is now on appeal by both the state and the Obama administration to the U.S. Court of Appeals for the 4th Circuit. That court, at the request of both parties, recently expedited briefing and scheduled arguments in its May 10-13 session.
U.S. District Judge Henry Hudson last December ruled that the act’s so-called individual mandate, requiring the purchase of health insurance, was unconstitutional, but limited his ruling to only that provision. The 4th Circuit is also reviewing an appeal of a ruling last November by Judge Norman Moon who upheld the act in Liberty University v. Geithner.
Two other district judges have ruled on the merits in challenges to the act. Most recently, Judge Roger Vinson in Florida struck down the entire act, but Judge George Steeh in Michigan upheld it. The Michigan case—Thomas More Law Center v. Obama—is now before the 6th Circuit. That court just announced that it too will expedite consideration and hold arguments in May.
In the Supreme Court petition, Cuccinelli asks the justices to resolve four questions: whether the state had standing to challenge the individual mandate; whether the district court erred in finding that the mandate violated the commerce clause; whether the district court erred in holding that the mandate and its related penalty were severable from the rest of the act; and whether the district court erred when it denied injunctive relief.
The attorney general tells the justices that Virginia’s case is a particularly good vehicle for resolving the split among the district courts “because all of the issues raised by the Department of Justice—standing, the Anti-Injunction Act, ripeness, and the limits of the Commerce Clause and of the Taxing Power—have been raised here where they have been exhaustively developed.” That is not the case, he adds, in the other decisions now being appealed.
The Obama administration is expected to oppose review before the appellate court acts.
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