Bloomberg
Supreme Court Won’t Expedite Review of U.S. Health-Care Law
By Greg Stohr
April 25, 2011

The U.S. Supreme Court declined an opportunity to review President Barack Obama’s health-care overhaul, rejecting Virginia’s bid to have its challenge to the law considered on an unusual fast-track basis.

Virginia, one of 28 states suing to invalidate the measure, urged the justices to schedule arguments without waiting for the four appeals courts that are poised to consider the law. The states say Congress overstepped its authority by requiring Americans to either obtain insurance or pay a penalty.

The rebuff doesn’t preclude the Supreme Court from hearing the case later, perhaps even before the 2012 election. For the time being, today’s action is a victory for the Obama administration, which urged the justices not to grant Virginia’s bid for a hearing.

“Expediting our case would have been the exception and so, although disappointing, this is not surprising,” Virginia Attorney General Kenneth Cuccinelli, said in a statement. He had said in court papers that the dispute was “of imperative national importance requiring immediate determination in this court.”

The step sought by Virginia, known as certiorari before judgment, is one the court has taken only a handful of times, including its 1974 decision ordering President Richard Nixon to turn over Oval Office tape recordings and its 1952 ruling blocking President Harry S Truman from seizing the nation’s steel mills.

The Obama administration argued that the health-care dispute doesn’t rise to that level of urgency, in part because the disputed provision doesn’t take effect until 2014.

No Urgency

“The constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance,” acting U.S. Solicitor General Neal Katyal argued in court papers. “This case is not, however, one of the rare cases that justifies deviation from normal appellate practice and requires immediate determination in this court.”

All nine justices took part in today’s decision to reject the appeal after the participation of Justices Elena Kagan and Clarence Thomas had become fodder for debate. For Kagan, the issue was what role she played in the law’s defense while serving as Obama’s top courtroom lawyer. Thomas has come under question because of the political and policy work of his wife, Virginia Thomas.

Even in the view of some opponents of the law, the Virginia petition stood little chance of getting a high court hearing. “Everybody thinks it’s a long-shot,” Randy Barnett, a Georgetown University law professor, said before the court acted.

Interstate Commerce

“By all rights, the legal challenge to health-care reform should be rejected unanimously by the courts of appeal and never even be reviewed on the merits by the Supreme Court,” said Doug Kendall, the president of the Washington-based Constitutional Accountability Center, which supports the law.

U.S. District Judge Henry Hudson ruled in December that Congress’s authority over interstate commerce didn’t give it the power to enact the insurance mandate. A federal appeals court based in Richmond, Virginia, is scheduled to hear the Obama administration’s appeal of that ruling May 10 — alongside an appeal of a different judge’s decision upholding the law.

Another appeals court, based in Cincinnati, will consider the issue June 1, and a third, based in Atlanta, will hear arguments June 8 in a case involving the other 26 states challenging the law. An appeals court in Washington will consider the matter later this year.

Action Required

The Supreme Court hasn’t directly considered a challenge to Congress’s power under the Constitution’s commerce clause since John Roberts became chief justice in 2005.

Opponents say the health plan is unlike anything the Supreme Court has ever upheld because the law would require people to take action: either buy health insurance or pay a fine. Hudson said no Supreme Court or appeals court ruling authorizes Congress to “compel an individual to involuntarily enter the stream of commerce” by buying something.

The Obama administration argues that people who would opt not to buy insurance without the mandate will affect interstate commerce eventually — and potentially impose costs on the government, insurers and hospitals — when they seek emergency room or other medical services.

The administration also contends that the individual mandate is essential to the law’s goal of increasing health-care availability and affordability.

The government says that, without such a rule, people could forgo buying insurance until they became sick, at which point the new law would require insurers to provide coverage. The effect would be to eventually drive insurers out of business, the administration says.

The Supreme Court case is Virginia ex rel. Cuccinelli v. Sebelius, 10-1014.