Va. AG: Nation affected by health care uncertainty

Jessica M. Karmasek Mar. 22, 2011, 2:51pm


WASHINGTON (Legal Newsline) - Virginia Attorney General Ken Cuccinelli says "the entire nation is and will continue to be affected by uncertainty" until his case against federal health care reform is heard by the nation's highest court.

On Monday, Cuccinelli filed a 12-page reply to the federal government's opposition to having his case heard by the U.S. Supreme Court.

Cuccinelli's lawsuit claims a portion of the reform package that requires individuals to pay a yearly $695 penalty if they do not purchase health insurance is unconstitutional. A federal judge agreed with him in December, and he pushed to have the federal government's appeal heard by the Supreme Court.

He argued that there was no need to waste time at the U.S. Court of Appeals for the Fourth Circuit since whatever decision it came up with would be appealed to the Court.

The federal government contends there is no need to rush his challenge.

In his reply, Cuccinelli points to Rule 11 of the Rules of the U.S. Supreme Court, which provides that a petition for a writ of certiorari before judgment "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 federal government, he says, concedes that "the constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance." However, it questions whether this is one of the rare cases that justifies "deviation from normal appellate practice" and "requires immediate determination."

"If this case does not satisfy that standard, it is difficult to see what case ever could," the attorney general wrote.

The federal government argues that at least one of the cases pending in the courts of appeals will possibly reach the Court next term "in the ordinary course."

But this, Cuccinelli says, "overlooks the desirability of using Rule 11" to ensure that "a significant constitutional issue is heard on the broadest available record."

The government also argues that the attorney general's case does not present a good vehicle for resolving the consitutionality of the Patient Protection and Affordable Care Act on the merits because of questions about Virginia's standing.

"Virginia, throughout this case, has renounced any reliance on proprietary, parens patriae or any other form of quasi-sovereign standing," Cuccinelli wrote. "This makes the Secretary's discussion of these matters quite beside the point."

The federal government's standing argument also depends upon "a misconstruction of the scope, reach and effect" of the Virginia statute, the attorney general said.

"The statement that 'the statute exempts entities other than the federal government' is narrowly and literally true in the sense that there are a few exceptions. But it is clearly a statute of general application applying broadly to employers and local governments as Virginia argued in the district court," Cuccinelli wrote.

He goes on to argue that if sovereign standing runs in favor of the United States, "there is no principled reason why it does not run in favor of the joint sovereign, Virginia."

"Accordingly, Virginia has standing, and the Secretary's argument that certiorari should be denied on that basis fails," the attorney general wrote.

A federal judge sided with 26 states in a similar lawsuit in Florida last month.

Because the mandate is too integral a part to be separated, U.S. District Judge Roger Vinson voided the entire legislation in the multi-state lawsuit. He called it "a difficult decision to reach."

"If Congress intends to implement health care reform -- and there would appear to be widespread agreement across the political spectrum that reform is needed -- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not," Vinson wrote.

"It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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