Virginia Attorney General Ken Cuccinelli II [official profile] announced [press release] Thursday that he will file a petition for certiorari before judgment with the US Supreme Court [official website; JURIST news archive], asking the court to hear an appeal in the case of Commonwealth v. Sebelius [materials], the Commonwealth of Virginia's challenge to the recently enacted health care reform law [HR 3590 text; JURIST news archive]. In December, a judge for the US District Court for the Eastern District of Virginia [official website] ruled [opinion, PDF; JURIST report] that the minimum coverage mandate provision of the law is unconstitutional. He left the rest of the law intact, holding that the coverage mandate was severable. Surpeme Court Rule 11 [text] allows the court to exercise direct discretionary appellate jurisdiction over cases with exceptionally far-reaching or urgent public policy implications. According to Cuccinelli, "a case cannot have public policy implications that are more important" than those at stake in the case:
Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act [PPACA], we feel that it is necessary to seek resolution of this issue as quickly as possible. Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional. ... We did not make this decision lightly. Given his unique responsibilities to fund and implement PPACA as Governor of Virginia, Governor McDonnell is particularly concerned about the possibility of wasting precious and strained taxpayer dollars preparing for a law that may well be struck down.The court's exercise of Rule 11 jurisdiction has been exceedingly rare, occurring only "upon a showing that the case is of such imperative public importance to justify deviation from normal appellate practice."
There are currently cases in 28 states challenging the provisions of the PPACA. Earlier this week, 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 [Cornell II backgrounder] power. The entire law was voided in that case, as the judge there found the 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.