Virginia Attorney General Ken Cuccinelli announced Feb. 3 that he will submit a petition to the U.S. Supreme Court asking to take the state's health care lawsuit immediately. If the petition is successful, the case would bypass the Federal Appeals Court in the process of determining its constitutionality.
The case of Commonwealth v. Sebelius deals with deciding the constitutional legitimacy of the Patient Protection and Affordable Care Act that was signed into law last March. The law was ruled unconstitutional in the lower courts but was appealed by the Justice Department. Virginia argued that requiring people to buy government approved health insurance is equivalent to "[penalizing] people for not engaging in commerce," Cuccinelli said in a press release. "In other words, you can get fined for doing nothing."
Rule 11 of the U.S. Supreme Court stipulates that immediate review is permissible "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 the Supreme Court," according to the statement.
Cuccinelli justified the "imperative" nature of the case by arguing that "the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the ... Act [made it] necessary to seek resolution of this issue as quickly as possible."
University Law Prof. G. Edward White, meanwhile, took another stand.
"There's no particular reason to have expedited review ... even if [the circuit courts] don't agree, it just seems as if this is something the lower courts ought to have more opportunities to consider," White said. "It's not as if this is a matter of national security."
Law Prof. Richard Bonnie agreed with White and said in an e-mail that "given the division of opinion among district judges, the Court will certainly want to allow these cases to proceed in an orderly fashion through the federal courts of appeal."
Still, the petition could expedite the legal process when it does reach the Supreme Court, said Brian Gottstein, a spokesperson for the Attorney General's office. "Petitioning the Supreme Court to take the case now could shave one to one-and-a-half years off the ultimate decision of whether the law is unconstitutional or not," Gottstein said in an e-mail.
Bonnie did not predict success for Cuccinelli's case.
"I think there is very little chance that the Supreme Court will grant the A.G.'s request," he said.
Although the Supreme Court does not tip off when the decision will be made on the status of a petition, White indicated that the court probably would "issue an order some time this term," which typically ends in the middle of June.
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