Wednesday, November 9, 2011

Supreme Court not likely to review state’s right to sue in Fourth Circuit ACA case

The U.S. government has issued its response to the petition for certiorari in Virginia v. Sebelius (No. 11-420). That’s the case where the Fourth Circuit Court of Appeals ruled that the state of Virginia lacked standing to challenge the minimum coverage provision of the Patient Protection and Affordable Care (ACA).

The state of Virginia argued it had standing to bring the action because ACA’s minimum coverage provision allegedly conflicts with a state statute, the Virginia Health Care Freedom Act (VHCFA). But the Fourth Circuit disagreed, finding that the VHCFA did not confer on the state a sovereign interest in challenging the provision. The court also found the provision applies only to individuals, not states.

Lower court didn’t reach merits. It’s important to note that the Fourth Circuit did not rule on the merits of the case. That means it did not address whether the minimum coverage provision is or is not constitutional.

Ruling doesn’t conflict with other cases. The government predictably opposes the Supreme Court’s review of the Virginia case. It contends that not only did the Fourth Circuit rule correctly on the standing issue, but moreover, the court’s “holding does not conflict with any decision of this Court or of any other court of appeals and does not warrant plenary review by this Court.”

Review Florida case instead. The government suggests that the petition in the Virginia case be held pending the disposition of the other related petitions, specifically HHS v. Florida, where the Eleventh Circuit found the minimum coverage provision unconstitutional. In that case, the court of appeals found that an individual, Mary Brown, had standing to challenge the coverage provision. Because the Virginia case contains a threshold jurisdictional question, but the Florida case does not, the government urges the Court to grant the petition in Florida to address the provision’s constitutionality.

Odds of review. As I mentioned in Monday’s post, the odds are favorable for the Court to review one of the cases containing the constitutionality issue. But Virginia v. Sebelius is not that case and, so, it’s unlikely the Court will review it. Now we all know that stranger things have happened (did I mention the 999-to-one odds on the Cardinals to win the World Series this year? Oh, that’s right, I did mention it in Monday’s post!). But we also know the Court prefers to limit (avoid?) review of established precedents, such as a state’s standing to sue the government. Stare decisis is the Court’s best friend, and I think it will stay that way with the Court declining to review the standing issue in the Virginia case.


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