The US Department of Justice (DOJ) [official website] filed a brief [text, PDF] with the Supreme Court [official website] Monday urging the court not to take a case challenging the constitutionality of the 2010 health care reform law [HR 3590 text; JURIST news archive] until a federal appeals court reviews the case. The DOJ argues that the case is ineligible for early review under Supreme Court Rule 11 [text, PDF] which prevents the court from taking a case pending before a circuit court of appeals absent "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 DOJ filed the brief in response to a February petition for a writ of certiorari [JURIST report] filed by Virginia Attorney General Ken Cuccinelli [official website] seeking to send the case, which declared the Patient Protection and Affordable Care Act (PPACA) unconstitutional [opinion, PDF; JURIST report], directly to the Supreme Court. Despite the case's public importance, those challenging the law seek only to have the individual mandate, which takes effect in 2014, declared unconstitutional, and, argues the DOJ, "[t]here will be ample time before 2014 for this Court to decide whether to grant review in the normal course and, if it does so, to issue a decision." The brief notes that three circuit courts have already agreed to hear expedited challenges and that, should the circuit courts be bypassed, there is no guarantee the Supreme Court will hear the case any sooner since the court will not have time to hear the case until next term at the earliest. The DOJ seeks to distinguish this case from other cases the court had heard early, claiming that, unlike the others, allowing this to go through the normal appeals process does not threaten to cause irreparable harm. The US Court of Appeals for the Fourth Circuit [official website] is scheduled to hear the case [Commonwealth v. Sebelius materials] in May.
Earlier this month, the US Court of Appeals for the Eleventh Circuit [official website] agreed to expedite its review [JURIST report] of a case challenging the PPACA but did not decide whether it will hear the case en banc. The DOJ filed a brief [JURIST report] with the Fourth Circuit last month urging the court to overturn the district court decision striking down the individual mandate, arguing that the Constitution's Commerce Clause and taxing power gave Congress the ability to pass the mandate. Cuccinelli announced his intention to appeal directly to the Supreme Court [JURIST report] earlier in February, citing the exceptionally far-reaching policy implications of the PPACA. There are currently 28 cases challenging the constitutionality of the PPACA. Federal courts in Washington, DC, Virginia and Michigan have upheld the law, while a federal court in Florida [JURIST reports] has also ruled the the individual mandate in unconstitutional, striking down the law in its entirety.