Feds to U.S. SC: Slow down health care challenge

By John O'Brien | Mar 15, 2011


WASHINGTON (Legal Newsline) - The U.S. government says there is no need to rush Virginia Attorney General Ken Cuccinelli's so-far successful challenge of federal health care reform.

Cuccinelli's lawsuit claims a portion of the reform package that requires individuals to pay an annual 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 U.S. 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 Supreme Court.

"Especially given the court of appeals' imminent consideration of this case, there is no basis for short-circuiting the normal course of appellate review by granting a writ of certiorari before judgment," a brief filed Monday says.

"Moreover, this case would make a poor vehicle to address the constitutionality of the Affordable Care Act's minimum coverage provision because petitioner's claim to standing rests entirely on a novel 'declaratory' state statute, and that threshold jurisdictional question could readily prevent the Court from reaching the merits of petitioner's claim."

Cuccinelli says the issue is of such public importance that it is better to have it decided as soon as possible. His lawsuit says a mandate requiring individuals to purchase health insurance or face an annual $695 penalty is unconstitutional and flies in the face off Virginia law. U.S. District Judge Henry Hudson agreed with Cuccinelli's argument in December.

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

Because the mandate is too integral a part to be separated, U.S. District Judge Roger Vinson voided the entire legislation in the 26-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," he added.

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

He ruled the mandate regulated inactivity in a marketplace, and wrote, "It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause."

And to allow otherwise would be dangerous, Vinson ruled. He pointed out that other jurists have opined on the threat of an overexpanded Commerce Clause.

"There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort," he wrote.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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