Va. Attorney General Cuccinelli Seeks Immediate Supreme Court Review of Healthcare Challenge

Virginia Attorney General Ken Cuccinelli announced Thursday that Virginia will seek an immediate U.S. Supreme Court review of the state's constitutional challenge to Obamacare, bypassing the appellate court. But legal experts doubt the move will succeed and lead to early intervention by the nation’s highest court.

A U.S. District Court judge in Virginia ruled in December that that the healthcare reform bill’s individual mandate requiring Americans to buy healthcare insurance is unconstitutional. The federal government appealed and the 4th Circuit Court of Appeals is scheduled to hear the case in May.

This week, a federal judge in Florida also ruled the mandate unconstitutional in a suit that 26 states had joined. In two other cases, federal judges have found the law constitutional.

Attorney General Ken Cuccinelli

Cuccinelli said: "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."

Rule 11 of U.S. Supreme Court procedure allows parties to skip lower courts and ask for immediate Supreme Court review, The Washington Post explains.

But the court grants such requests “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.”

A Justice Department spokeswoman said its lawyers feel the case should be heard first in an 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.

The Obama administration so far has appeared content to letting the appeals process play out. It appealed both the Virginia and Florida decisions.
A number of legal experts have said they believe the Supreme 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,” The Post reports.

Schamler also noted that the individual mandate 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."