Wednesday, April 6, 2011

Cuccinelli’s reply brief argues for expedited resolution to health care lawsuit

Attorney General Ken Cuccinelli in his Roanoke office.

UPDATE via Attorney General Ken Cuccinelli’s facebook page:

Virginia is on dual tracks at the moment: we have a request before the U.S. Supreme Court to expedite the case and we are proceeding in the 4th Circuit Court of Appeals at the same time.

On April 15th, the 9 Justices will hold a “conference” to decide whether they want to expedite our case or not. We may hear the same day, or perhaps Monday, April 18th. The speculation of others is that if we don’t hear by the 18th then someone is writing a dissent to the decision whether to expedite.

If they decide to expedite the case, the case in the appellate court will cease immediately.

Ironically, the due date for the final brief in the case in the appellate court is… guess… April 18th! Thus far, both the feds and Virginia have filed their opening briefs. On April 11th (this coming Monday), the feds will file their reply brief and Virginia will file its reply brief on April 18th. Oral argument is scheduled for May 10th before a three-judge panel of the 4th Circuit.

So, in less than two weeks we’ll know whether we’re headed directly to the Supreme Court or through the more traditional path via the 4th Circuit.

Stay tuned!


March 31: Last week Attorney General Ken Cuccinelli said that his staff had to “hustle” to file a reply brief to the U.S. Supreme Court to meet a deadline of March 24. The formal printing requirements for such briefs is a daunting task explained Cuccinelli at his office in Roanoke on March 18. The reply brief was filed Monday, March 21. (See links below on the interview.)

The expedited request for fast track to the U.S. Supreme Court was first filed on February 3. On February 7 Governor McDonnell wrote to Kathleen Sebelius, Secretary on Health and Human Services saying the Affordable Healthcare Act is fundamentally flawed and that he “was confident the U.S. Supreme Court would eventually rule the PPACA unconstitutional.” McDonnell argued that it “infringes on personal choice and would undermine the insurance industry.”

On February 16 Attorney General Cuccinelli testified before Congress.

On March 15 Secretary Sebelius filed a brief to SCOTUS opposing fast track of the Commonwealth’s lawsuit. Governor McDonnell characterized the Obama Administration’s opposition as being “irresponsible and indefensible. A litigation process potentially taking years to resolve is bad for America, and will potentially cost the states tens of millions of dollars.”

CLICK HERE for the brief as filed in its entirety.

The attorney general’s team filed the reply brief on March 21 – excerpts:

INTRODUCTION: Given the daunting and costly financial and regulatory burdens that our states and the private sector will face in implementing PPACA over the coming years, particularly during this unprecedented budgetary time, public interest requires expediting a final resolution of the litigation to give certainty as soon as possible. We should not endure years of litigation in the circuit courts, when the Supreme Court can promptly provide finality. This resolution can help prevent the states and the private sector from undertaking potentially unnecessary measures and expenses. More importantly, our businesses, health care providers, and citizens of our great nation need to know as soon as possible whether all or part of the law will be upheld or stricken, so they know their options and obligations.

ARGUMENT: Rule 11 of the Rules of this Court provides that a petition for a writ of certiorari before judgment “will be granted 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.” The Secretary concedes that “[t]he constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance.” (Br. in Opp’n at 12).

But she questions whether this is “one of the rare cases that justifies ‘deviation from normal appellate practice’ and ‘require[s] immediate determination in this Court.’ ” (Id.)

If this case does not satisfy that standard, it is difficult to see what case ever could. The issue is a pure question of law. Every district court that has reached the merits has rejected or declined to rule on the Secretary’s taxing power argument while concluding that the claimed power under the Commerce Clause is novel or unprecedented. (The Federal Government’s fall back argument that it is not a penalty but a tax.)

The court of appeals will argue on May 10th. Cuccinelli expects the 4th Circuit Court of Appeals to hear the case sometime in July and if he loses Cuccinelli will appeal to the Supreme Court. If the federal government loses he believes they will probably try to slow it down with another review that would push it to November. That could push it to June 2012 before it is heard by the U.S. Supreme Court. 

Attorney General Cuccinelli on elder abuse – Part One

Attorney General Cuccinelli on testifying before congress – Part Two

The softer side of Attorney General Cuccinelli – Part Three

Posted By Valerie Garner

Categories: National, Politics, State Politics

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