Virginia Attorney General Kenneth Cuccinelli [official website] on Tuesday filed a petition for a writ of certiorari [text, PDF] with the US Supreme Court [official website; JURIST news archive] asking the court to rule on the constitutionality of the health care reform law [HR 3590 text; JURIST news archive] on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. Cuccinelli announced last week [press release; JURIST report] that he was going to petition the court for an expedited review due to the far-reaching public policy implications inherent in the implementation of the legislation and the potential cost to the states as uncertainty surrounding the legislation's constitutionality remains. In December, a judge for the US District Court for the Eastern District of Virginia [official website] struck down [opinion, PDF; JURIST report] the individual mandate portion of the Patient Protection and Affordable Care Act (PPACA), but left the remainder of the bill intact. Cuccinelli is asking the court to rule on whether the lower court erred when it found that the individual mandate was a violation of Congress' powers under the Commerce Clause [Cornell LII backgrounder] of the Constitution and whether it erred in determining that the individual mandate provision of the law was severable from the remainder of the act, leaving the majority of the provision of the PPACA in place. The US Department of Justice [official website] has indicated that they believe the challenge should be heard by the court of appeals [AP report] before being considered by the Supreme Court. The court of appeals is scheduled to hear arguments in Commonwealth v. Sebelius [materials] in May.
There are currently cases in 28 states challenging the provisions of the PPACA and the lower court rulings on issues surrounding the legislation have been mixed. Earlier this month, a federal judge in Mississippi dismissed a lawsuit challenging the law [opinion, PDF; JURIST report] on the basis that the plaintiffs lacked standing because their allegations were insufficient to show "certainly impending" injury. In January, a judge for the US District Court for the Northern District of Florida [official website] struck down [opinion, PDF; JURIST report] the law as an unconstitutional overreaching of Congress' Commerce Clause power. The entire law was voided in that case, as the judge found the individual insurance mandate to be unserverable. That decision is expected to be appealed to the US Court of Appeals for the Eleventh Circuit [official website]. Earlier in January, a judge for the US District Court for the Western District of Virginia [official website] dismissed [JURIST report] a lawsuit challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled [JURIST report] that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.