If Virginia Attorney General Ken Cuccinelli thought his lawsuit to overturn the Patient Protection and Affordable Care Act (ACA) was on a fast track to the United States Supreme Court, he was wrong. The Supreme Court has deferred action on Virginia v. Sebelius (10-1014) for the time being. Virginia is one of 27 states claiming that President Barack Obama’s healthcare reform law is unconstitutional, and wants the justices to take the extraordinary action of scheduling arguments without waiting for rulings by the four appeals courts that are ready to review the law. The lawsuit names Department of Health and Human Services Secretary Kathleen Sebelius as the defendant.
“The constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance,” acting U.S. Solicitor General Neal Katyal argued. “This case is not, however, one of the rare cases that justifies deviation from normal appellate practice and requires immediate determination in this court.”
“This could mean that a justice is writing a dissent from the denial; or that a justice is writing a statement respecting denial; or that a potential fourth justice to grant is unsure and needs more time; or even that the Court is unsure whether to deny or dismiss the petition (for lack of jurisdiction),” writes Brad Joondeph of the ACA Litigation Blog, which follows challenges to the healthcare reform law. “We just don’t know.”
Two federal judges have ruled the law’s individual mandate is unconstitutional, while others have upheld it. The Obama administration holds that appeals courts should hear arguments that have been scheduled in four appeals courts over the next five months. Critics claim that the differing opinions so far are creating legal uncertainty and should be resolved as quickly as possible by the Supreme Court.
Writing in the SCOTUSblog, Lyle Denniston said “The Supreme Court left unresolved, at least for the moment, the fate of the state of Virginia’s attempt to get the Justices to rule on a very fast track the broad challenge to the constitutionality of a key feature of the new federal healthcare law. The plea by the state to take up the validity of the new mandate to buy health insurance, before any federal appeals court rules on it, was before the Justices at their Conference last Friday, but no order on it came out with the Monday list.
“The Court usually does not explain its failure to act on a case that it had considered in Conference, and it is unclear whether the case will be put before the Court again at its next private session. It is conceivable that the Court has voted to deny ‘certiorari before judgment’ (the technical description of the state’s plea), and that someone is taking time to prepare a comment or dissent from such a denial. That would only become known if and when an order comes out in the case,” according to Denniston.
Analysts believe that any Supreme Court review would be deferred until its 2011-12 term that begins in October, depending on how quickly the appeals courts rule. Kevin Russell, a Washington attorney who argues before the Supreme Court, said it would be unexpected if the justices granted Virginia’s appeal seeking expedited review. “The court has granted only a handful of such requests in the past and almost never over the objection of the federal government, which has opposed Virginia’s request,” he said.