Monday, March 21, 2011

U.S. wants brakes put on Virginia’s request for Supreme Court review of health reform case

“This case would make a poor vehicle to address the constitutionality of the Affordable Care Act’s minimum coverage provision.”

That is one of the arguments in the United States’ brief in opposition to the state of Virginia’s request to fast track its health care lawsuit to the Supreme Court. In case you forgot, the Virginia Attorney General filed a petition last month asking the Supreme Court to take Virginia’s case now, as opposed to waiting for the case to first be decided by the court of appeals (see Health reform rollercoaster on fast track to Supreme Court?).

Normal course of review. In addition to the “poor vehicle” argument quoted above (if you’re into detailed legal arguments, see below for an explanation of it), the U.S. argues in its brief that there’s no “basis for short-circuiting the normal course of appellate review.” The constitutionality of the minimum coverage provision is already under expedited review in three courts of appeals, including the Fourth Circuit, where these parties are set for oral argument on May 10. The provision does not take effect until 2014, so the Supreme Court has plenty of time to decide whether to grant review in the normal course, according to the brief.

The U.S. also points out that even if Virginia’s petition is granted, the case would not be heard until next Term (because Virginia did not seek expedition of its request for certiorari before judgment), so it’s possible that one of the other expedited appellate court cases could be heard next Term in the normal course. So, granting the petition would not necessarily result in significantly accelerating the Court’s review of the minimum coverage provision. And granting it would deny the Supreme Court the ability to view how the circuits ruled on the issue.

Considerable resources. The U.S. also rejects Virginia’s argument that it must spend considerable resources to meet requirements of the other provisions of the Affordable Care Act (ACA). “That petitioner must remain subject to those unchallenged provisions during the relatively short time necessary for orderly appellate review thus does not constitute an extraordinary circumstance warranting certiorari before judgment,” the brief states.

No extraordinary circumstances. The brief’s third argument is that this case does not resemble the handful of cases in which the Supreme Court granted review before judgment. In those cases, the Court “granted early review because allowing review to proceed in the normal course presented risks of extraordinary disruption and irreparable harm.”

Among the cases mentioned are Mistretta v. United States (federal sentencing guidelines), United States v. United Mine Workers (coal mine strike) and Youngstown Sheet & Tube Co. v. Sawyer (federal government’s seizure of the nation’s steel industry).

Unlike those cases, this case does not involve extraordinary circumstances that warrant the Court’s immediate intervention, the U.S. argues.

Poor vehicle. And finally, we reach the “poor vehicle” argument. The U.S. argues that Virginia lacks standing (in other words, doesn’t have the relevant rights) to bring a lawsuit challenging the minimum coverage provision. That’s because that provision applies only to individuals and imposes no duties on Virginia or any other state. The brief states the Supreme Court’s prior rulings indicate that a state cannot sue the federal government to protect its citizens against the operation of a federal statute.

Virginia’s basis for standing is the Virginia Health Care Freedom Act, a state statute enacted shortly before the ACA was signed into law. But the U.S. points out the district court acknowledged the statute was “declaratory” because it doesn’t grant Virginia any power of enforcement. The state has not shown the statute is anything other than an effort to create standing, according to the brief.

Thus, if the state of Virginia cannot overcome the threshold standing question, the Supreme Court might be prevented from reaching the merits of the case. And that, my friends, according to the U.S., makes this case a “poor vehicle” to address the minimum coverage provision.


Post a Comment