Published March 14, 2011
The Obama administration told the Supreme Court on Monday night it should stay away from a high-profile challenge to the 2010 health care law until after a lower court has had a chance to review the case.
Acting Solicitor General Neal Katyal wrote, "there is no basis for short-circuiting the normal course of appellate review." Katyal also says Virginia Attorney General Ken Cuccinelli's case is problematic because he may lack sufficient standing to challenge the health care law.
The Supreme Court normally takes cases only after they've been reviewed at least once by appellate judges. Virginia Attorney General Ken Cuccinelli says that's not appropriate in this instance.
In his filing last month, Cuccinelli said there's a "palpable consensus" that the high court will ultimately have to pass judgment on the merits of President Obama's health care law and should do so without delay. Furthermore, Cuccinelli argues that his case involves "pure issues of constitutional law" that appellate judges on the Fourth Circuit U.S. Court of Appeals will be unable to definitively resolve.
Katyal says there is no question that the case is of great public importance but uses the language of the court's own rules to say it is not "one of the rare cases that justifies deviation from normal appellate practice and require[s] immediate determination in this court." Katyal points out that the Virginia case and several others are already in the pipeline and little time may be saved if the court were to jump in now.
Politicians from both parties have also expressed support for immediate high court review. Sen. Bill Nelson, D-Fla. took to the Senate floor to champion the cause. Republican governors recently sent a letter to Obama asking him to support Virginia's efforts, writing, "we should not endure years of litigation in the circuit courts, when the Supreme Court can promptly provide finality."
The Supreme Court denied without comment a similar request for expedited review made last year in another, lower-profile health care challenge from California.
With the government arguing against immediate consideration, most court observers think it is unlikely the justices will grant Cuccinelli's request.
In December, U.S. District Court Judge Henry Hudson ruled that the health care law's regulation forcing people to buy health insurance or face a penalty is unconstitutional. The government's appeal seeking to vindicate Obama's signature legislative accomplishment is currently pending before the Fourth Circuit. Oral arguments are scheduled for May 10 in Richmond, Va.
For many years the Fourth Circuit held a reputation as one of the most conservative federal appellate courts in the country. But in the past two years, Obama has appointed four of the court's 15 members, thus diminishing that reputation.
If the high court does not immediately take the case, the three Fourth Circuit judges that will hear the appeal will not be known until the morning of the arguments.