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Posted at 9:26 AM ET, 02/ 3/2011

Cuccinelli to seek immediate Supreme Court review in Virginia health-care suit

By Rosalind S. Helderman
Rosalind S. Helderman

Virginia Attorney General Ken Cuccinelli II (R) announced Thursday that he will seek immediate review by the U.S. Supreme Court of the state's constitutional challenge to the federal health-care overhaul, a rare legal request to bypass the appellate court and ask for early intervention from the nation's highest court.

A U.S. District Court judge in Virginia ruled in December that it is unconstitutional to require individuals to purchase health insurance, as envisioned in the law. The federal government appealed, and the 4th Circuit Court of Appeals is scheduled to hear the case in May. Lawyers for the Justice Department will probably fight Cuccinelli's motion to skip appellate review.

Earlier this week, a federal judge in Florida followed suit, ruling the law unconstitutional in a suit filed jointly by 26 states. In other cases, two other federal judges have said the law is constitutional.

"Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible," Cuccinelli said in a statement.

Rule 11 of U.S. Supreme Court procedure allows parties to skip lower courts and ask for immediate Supreme Court review, but the court grants such requests only upon a showing that the case is of "such imperative public importance" that it requires changing normal procedures.

A spokeswoman for the U.S. Justice Department said its lawyers believe the case should be heard first by the appellate court.

"The Department continues to believe this case should follow the ordinary course of allowing the court of appeals to hear it first so the issues and arguments concerning the Affordable Care Act can be fully developed before the Supreme Court decides whether to consider it," said spokeswoman Tracy Schamler in a statement. "Virginia's suit is based on a state statute that is not applicable nationwide."

Cuccinelli has indicated for several months that he was considering filing a petition for certiorari with the court. He originally requested that the U.S. Justice Department join in the motion, citing uncertainty surrounding the massive law's implementation after conflicting lower-court rulings on its constitutionality.

But he said Thursday that he will make the motion even without agreement from his federal opponents.

A number of legal experts have said that they believe the court is unlikely to grant Virginia's action because the justices generally want to review the opinions of as many lower-court judges as possible before acting.

Additionally, Cuccinelli's action might be perceived as an attempt to maintain the head-start Virginia's case has had over the separate case filed jointly by other states in Florida and ensure his is the case used by the Supreme Court to decide the constitutionality of the sweeping law.

In his statement, however, Cuccinelli said he did not make the decision to seek high court review lightly but was instead prompted in part by requests from Republican leadership in Virginia, including Gov. Robert F. McDonnell (R), who have said they are concerned about the costs of implementing the law.

"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," Cuccinelli said. "Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone's best interest," he said.

But Schamler noted that the Fourth Circuit has already expedited review of the Virginia case.

"This case is one of two that are already scheduled for argument in the Fourth Circuit this May, so going through the usual process would make little difference in timing as to when the Supreme Court could hear it, while allowing the appellate court to thoroughly evaluate the issues," she said. "As [the Virginia judge] noted in denying an injunction, the individual responsibility provision does not go into effect until 2014, so there is more than sufficient time for this case to proceed first in the court of appeals."

This item has been updated since it was first posted.

By Rosalind S. Helderman  | February 3, 2011; 9:26 AM ET
Categories:  Ken Cuccinelli, Robert F. McDonnell, Rosalind Helderman  
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Comments

Cuccinelli is scared one of the other cases might make it to the supreme court first, and he'll miss out on his big national spotlight moment.

Posted by: MarilynManson | February 3, 2011 9:33 AM | Report abuse

Ken the Kook is easily the worst AG that Virgina has had in the last 50 years. People were really stupid to vote for this nut. He's done nothing but waste the state's time and money on his radical social agenda. Not once have I seen him in the news for doing anything positive for the state. Not once have I seen any news of him engaged in making the state better for business, or standing up for people's rights.

Posted by: Nymous | February 3, 2011 9:51 AM | Report abuse

Thankfully Virginia will be leading the way just as the Commonwealth has for decades.

Posted by: underthesea2 | February 3, 2011 9:58 AM | Report abuse

Cuccinelli has hgher aspirations, so he's trying to make a name for himself. I do not support his efforts. While its not perfect, the Health Care las has, and will continue, to help millions of Americans.

Posted by: cferenschak | February 3, 2011 10:04 AM | Report abuse

So, anyone know why Mark Warner missed the vote in the Senate on health care repeal yesterday? He was in DC at some point during the day at the Center for American Progress. The Wall Street Journal contacted his office for comment on why he missed the vote and they declined to comment. Hey, Post, find out why Virginia was down by one senator yesterday, will you?

Posted by: JTR555 | February 3, 2011 10:12 AM | Report abuse

May God help the folks in Virginia. This Cuccinelli guy's main intention is to make a name for himself but not because he loves the good people of Virginia. Why folks in Virginia will vote this guy into power is beyond comprehension. Take note Virginians - Cucinelli does not have your interest at heart - not from his pronouncements and deeds so far.

Posted by: momsyqueenie | February 3, 2011 10:13 AM | Report abuse

Of course it's unconstitutional to force someone to buy health insurance, just like it's unconstitutional to force anyone to buy car insurance or pay into social security or medicare.

And how about forcing companies (who are persons too, after all) to pay a share of social security as well as unemployment compensation? That's clearly unconstitutional too. Or making them pay minimum wage or time and a half for overtime. Shameful.

Let's get rid of all these liberal restraints on freedom and go back to 1931 when people could sell apples on the street with dignity and die in their own time without having to deal with doctors and expensive medications.

Posted by: loyalsyst | February 3, 2011 10:31 AM | Report abuse

More grandstanding by Ken Kookynutty. Nothing new here.

Posted by: Observer691 | February 3, 2011 10:49 AM | Report abuse

would be nice if he'd put our citizens' interests before his own political interests.

showpony.

Posted by: wrekehavoc | February 3, 2011 10:54 AM | Report abuse

loyalist: When you become eligible for social security, don't sign-up.

Posted by: jckdoors | February 3, 2011 10:55 AM | Report abuse

No fan of Ken but it makes no sense to me having multiple district and appellate courts reviewing the same law. It is also not likely any lower court decision will affect the ultimate SCOTUS ruling. The cases should be consolidated and taken directly to SCOTUS. It is serving no ones interest to drag this out over 3 years and is also a waste of court money and time.

Posted by: chucko2 | February 3, 2011 11:02 AM | Report abuse

why didn't this article report on the 2 cases where the judge decided in favor of the health care reform?

come on, please report Completely

Posted by: newagent99 | February 3, 2011 11:03 AM | Report abuse

This uptight, white, righty is looking for his 15 minutes of fame as soon as he can before the 2012 election cycle.

Posted by: lddoyle2002 | February 3, 2011 11:09 AM | Report abuse

We know this is one case that will end up being decided by the SC.

So, why waste time with the appeals courts?

Posted by: DarrylScott | February 3, 2011 11:11 AM | Report abuse

Atty. Gen. Cuccinelli is quite correct to ask for expedited review of the health-care bill. Allowing the cases to drag on for years will only add uncertainty, which hurts businesses and governments alike.

It's regrettable that the Obama Administration wants to keep the case on a slow track (probably until after the 2012 elections).

But there is growing bipartisan support for Cuccinelli's approach, even among those who support the law. U.S. Sen. Bill Nelson (D-Fla.) has proposed a Senate resolution, asking the Supreme Court to take the case now. See http://snipurl.com/1ylk3k

Posted by: jrmil | February 3, 2011 11:13 AM | Report abuse

"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," Cuccinelli said.

- - - - - - -

Rather oddly, Orrin Hatch, Chuck Grassley, and other Republicans had no questions at all as to the constitutionality of the "individual mandate" when the Heritage Foundation put it forth starting in 1992 and they incorporated it into legislation they co-sponsored to counter the Clinton health care reform efforts.

But since the explicit goal of the Republican party is to make Barack Obama a one-term president, regardless of how much damage those efforts cause to the country as a whole, little inconsistencies like that make no real difference.

Since there is a limit to how much damage fellow Fundamentalist Gov. McDonnell can inflict and Jim Webb has not declared whether he plans to continue serving his country, it's not surprising that Ken the Kooch wants to make use of anti-social ideas to maintain a high profile for himself.

Posted by: edallan | February 3, 2011 11:15 AM | Report abuse

What's odd about the law is that it requires a person who is not earning income to buy something.

Then again, maybe it should not be a surprise that Washington is insisting that everyone else follow its practice of spending money it doesn't have.

Posted by: blasmaic | February 3, 2011 11:24 AM | Report abuse

Cooch is afraid he will lose on appeal. Wouldn't it be ironic if the courts decided Virginia is the only state in the union where the Affordable Care Act cannot be implemented because its legislature passed a law before the health care reforms were enacted. I can hear that sucking sound across every state border now as Virginia falls to the bottom.

Posted by: Viewpoint2 | February 3, 2011 12:01 PM | Report abuse

This guy is just grandstanding trying to get in the national political spotlight. The law does not go into effect any time soon so why bypass the usual procedures? Whatever downside HCR has there is plenty of time to correct it. Republicans won mid terms by fighting the dems so they need something to keep fighting about. For those who voted for them know that they will spend more time finding reasons to fight the democrats then they will working for you. Sometimes fighting the dems is counterproductive for the citizens they call themselves fighting for. Trying to appeal HCR is not creating jobs now is it? Its just political grandstanding. Its all about 2012. No new ideas from the other side, just more politics. Republicans are always thinking about the next election, not you and me. In the end they will have the white house but we will still have all the same problems with no new solutions. But they dont care so as long as they win.

Posted by: ged0386 | February 3, 2011 12:53 PM | Report abuse

While we study the unconstitutionality of being forced to get health insurance let study the same regarding seatbelts, auto insurance, paying taxes, paying into social security, Civil Rights. All these laws are government backed and force you to do things that some may think they should have the right to refuse to do. Most of these laws met strong resistance. All of these laws work and help us everyday. Health Care Reform will be no different.

Posted by: ged0386 | February 3, 2011 1:00 PM | Report abuse

I am glad to see VA taking the lead in sorting out the constitutionality of the document that no one read before voting on it. We need a clear ruling, and we need it quickly; i.e., before we cause a lot of disruption and waste a lot of tax dollars.

Posted by: Prof-Dr-G | February 3, 2011 1:17 PM | Report abuse

we shall see.. Obama did the best he could in a worst case scenario. but corporations do not and will provide the coverage they "promise" the emperor's new clothes are non-existent. we will nearly freeze to death. only when the ice starts to melt will the government realize they are all wet and the people of the nation are naked. good luck with the whole getting the policies to "hold" up through these storms.

Posted by: Liberty14 | February 3, 2011 1:20 PM | Report abuse

Ol Kenny Boy knows that his handpicked Judge will be over ruled at the Appellate level and the Supremes won't touch this after that, then he’ll go back to prosecuting leash law violations in some backwater Virginia town.

Posted by: notthatdum | February 3, 2011 1:24 PM | Report abuse

we shall see.. Obama did the best he could in a worst case scenario. but corporations do not and will provide the coverage they "promise" the emperor's new clothes are non-existent. we will nearly freeze to death. only when the ice starts to melt will the government realize they are all wet and the people of the nation are naked. good luck with the whole getting the policies to "hold" up through these storms.

Posted by: Liberty14 | February 3, 2011 1:30 PM | Report abuse

If Cuccinelli thinks the healthcare issue should be unconstitutional (as I am a Virginian) I would like for him to also file a law-suit to have Social Security found to be unconstitutional since it is something we are being forced to pay by the federal government...it's aboout the same though process as he has about healthcare.

Cuccinelli showed his true self and personal agenda/vendetta starting on his first day of office and nothing has changed. He has waisted untold amounts of taxpayer $$ for trivial pursuits and seems to be about the most arrogant person I've come across in some time.

Posted by: dwayne420 | February 3, 2011 4:58 PM | Report abuse

So, anyone know why Mark Warner missed the vote in the Senate on health care repeal yesterday? He was in DC at some point during the day at the Center for American Progress. The Wall Street Journal contacted his office for comment on why he missed the vote and they declined to comment. Hey, Post, find out why Virginia was down by one senator yesterday, will you?

Posted by: JTR555 | February 3, 2011 10:12 AM
*******************************

We need to know the answer to that question. Why was this guy AWOL on such an important vote?

Posted by: Prof-Dr-G | February 4, 2011 10:55 AM | Report abuse

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