Supreme Court Refuses the Speedier Route for Health Care Appeal

Monday morning the Supreme Court rejected Virginia Attorney General Ken Cuccinelli’s request to speed up the process for a ruling on Virginia’s health care appeal.

By rejecting Virginia’s unusual request, the Court denied Cuccinelli’s request that its appeal bypass usual legal procedures to go directly before the nation’s highest court. Instead, the Fourth Circuit Court of Appeals will hear Virginia’s appeal, scheduled for May 10.

So far five federal judges have heard challenges to Obama’s sweeping healthcare overhaul. Judges in Florida and Virginia have declared the law unconstitutional, while Democratic appointees in Michigan, Virginia, and Washington, D.C. have upheld Obamacare.

Virginia’s chief complaint with Obamacare is the individual mandate. Twenty-six states joined Florida’s appeal that Congress grossly overstepped its authority with this unprecedented requirement that individuals buy health insurance or pay a penalty to the government if they do not purchase coverage.

No justices sat out of Monday’s denial of fast-track process. Yet the slow route is new for Obamacare, a highly contested sweeping legislation that passed only when then-speaker of the  House Nancy Pelosi invoked a bizarre, constitutionally-dubious “deem and pass” procedure that unseated civics as we know it and “deemed” the bill popular rather than put it to popular vote the way the American Constitution requires.

Obamacare’s individual mandate comes into effect starting in 2014. In addition to the Fourth Circuit’s scheduled Virginia appeal at least three federal appellate courts will hear state appeals to the administration’s new health care law in the coming months.

The Supreme Court typically hears state appeals only after an appellate court has ruled. In Virginia’s February filing, AG Cuccinelli argued that state appeals will undoubtedly make it to the Supreme Court; because “[t]his case is of imperative national importance,” it requires “immediate determination” in the Supreme Court.

Hot Air published a statement issued by Cuccinelli’s office in response to the SCOTUS decision:

Virginia Attorney General Ken Cuccinelli reacted today to the United States Supreme Court’s decision not to expedite Virginia’s lawsuit against the federal health care law and its mandate to force individuals to buy health insurance:

“We asked the United States Supreme Court for expedited review of our lawsuit because Virginia and other states are already spending huge sums to implement their portions of the health care act, businesses are already making decisions about whether to cut or keep employee health plans, and citizens are in limbo until the Supreme Court rules.  Asking the court to expedite our lawsuit was about removing this crippling and costly uncertainty as quickly as possible.  We were gratified that both Republicans and Democrats in Virginia supported the effort to expedite.

“The Supreme Court rarely expedites cases under its Rule 11.  Expediting our case would have been the exception and so, although disappointing, this is not surprising.

We look forward to making our arguments in the U.S. Fourth Circuit Court of Appeals on the morning of May 10th here in Richmond. This case’s logical end point is the Supreme Court.  It will simply have to make its way through the Fourth Circuit first,” Cuccinelli said.

If the Court’s denial of expedited process is not surprising, perhaps Justice Kagan’s participation in the ruling is the most noteworthy part of the morning.

Elena Kagan joined the Court in August after serving as United States solicitor general, the federal government’s top appellate lawyer. While under consideration for supreme appointment, Kagan wrote early last summer that she had not been involved with the administration’s defense of the federal health care overhaul.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” she wrote, “but none where any substantive discussion of the litigation occurred.”

In December Judge Henry E. Hudson in Richmond declared that the individual mandate is unconstitutional. Judge Roger Vinson in Florida struck down the law in it entirety when he came to the same conclusion in January.

Having rejected the fast track, all nine Supreme Court justices are expected to hear the states’ appeal to the health care bill sometime in 2012.