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Cuccinelli To Seek Expedited Review By Supreme Court on Health Care — Bypassing The Fourth Circuit

Virginia Attorney General Ken Cuccinelli announced this morning that he will file a Petition for Certiorari Before Judgment today requesting that the U.S. Supreme Court review the Commonwealth v. Sebelius decision without waiting for a ruling from the United States Court of Appeals for the Fourth Circuit.

The Supreme Court allows for such an expedited review but rarely grants it. Here is the rule:

Rule 11. Certiorari to a United States Court of Appeals before Judgment

A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, 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.

In a press release, Cuccinellis insists that this is one such circumstance:

Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible,” said Cuccinelli in the release. “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. Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone’s best interest.

He clearly waited for the decision in Florida this week to establish a division of opinion with two district courts upholding the law and two district courts finding it unconstitutional. Frankly, there may be less of a division once the cases go to the appellate court. The appellate courts could easily go the other way on standing or the merits. There are strong cases on both sides of this issue, though (as I have stated before) I believe Congress has an advantage in the lower courts. This was always a case that would have to be resolved by the Supreme Court.

The advantage to bypassing the circuit court is obvious. While the other two opinions upholding the law are likely to be affirmed, there is a real chance that one or both of the Virginia and Florida opinions could be reversed in whole or in part. That makes opponents to the health care law more vulnerable at the appellate level. The biggest problem for Virginia is that the individual mandate is not schedule to kick in until 2014 — giving ample time for review under “normal appellate practice.” Indeed, with argument schedule in Virginia for May, the case could be before the Court and resolved next year.

The Court has always disfavored such petitions on the same grounds as interlocutory appeals generally. See Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (Scalia, J., concurring in denial of certiorari) (“We generally await final judgment in the lower courts before exercising our certiorari jurisdiction.”).

In the rare occasions it is granted, it tends to be in cases involving multiple appeals where some are already through the appellate stage. For example, this happens in the Grutter/Gratz affirmative action rulings. In Gratz v. Bollinger, 539 U.S. 244 (2003), the petitioners succeeded in their writ of certiorari before judgment, because its sister case, Grutter v. Bollinger, had already been ruled upon by the Sixth Circuit. In that case, however, the appellate court had already been heard on the issue.

In Roe v. Wade, there was an expedited review in that the Court found a way to reviewing such the injunctive and declaratory decisions. The Court explained the rather convoluted path of that case:

The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to [***160] 28 U. S. C. § 1253, have appealed to this Court from that part of the District Court’s judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court’s grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971).

It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs’ prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are to the effect that HN1§ 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm’n, 396 U.S. 320 (1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80-81 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 179.

It was also allowed in United States v. Nixon, 418 U.S. 683 (1974), where the Court held:

The District Court’s order was appealable as a “final” order under 28 U. S. C. § 1291, was therefore properly “in” the Court of Appeals, 28 U. S. C. § 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a “limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims,” United States v. Ryan, 402 U.S. 530, 533. Such an exception is proper in the unique circumstances of this case where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 690-692.

Of course, it is even more rare for the winning party to seek expedited appellate review. It is usually the losing party that is eager to have appellate review. Yet, this can cut in favor of Virginia since it is motivated not by overturning the ruling but the costs of the delay and uncertainty.

Having said that, there are credible arguments for expedition. First, there is no question of the importance of the issue to the nation. Few cases come before the Court with this level of immediate and considerable importance to the nation. Both sides have stated no less in arguments before the district courts. There are now 28 states out of 50 opposing the law.

Second, there is confusion as to the status of the law. Judge Vinson declined to grant an injunction — stating (as noted earlier) that a declaratory judgment is the equivalent to an injunction. I disagree in this case and I have received a number of calls for lawyers in the field who asked whether the law was still enforceable. They are not ideologues. They are lawyers who are unsure of what law to follow. Ironically, it is the Florida ruling striking down the entire law that most contributes to that confusion.

Third, this matter will not be fully resolved until the Court renders a decision. All of the opinions below struggle with conflicting and confusing precedent left by the Supreme Court.

Notably, Cuccinelli’s request is supported on some level by Sen. Bill Nelson (D-FL), who has asked Congress to pass a resolution calling for expedited review.

I will post the petition once it is available.

Source: Washington Post

Jonathan Turley

29 thoughts on “Cuccinelli To Seek Expedited Review By Supreme Court on Health Care — Bypassing The Fourth Circuit”

  1. Below are two paragraphs from an article written by Sam Stein for the Huffington Post. In the piece Stein posits that Justice Scalia, rather than Justice Kennedy may be the deciding vote on the Patients’ Protection Act:

    An unapologetic constructionist, Justice Scalia doesn’t strike the pose of philosophical champion for Obama’s signature legislation. But his opinion in the 2005 case of Gonzales v. Raich has led to speculation that he could begrudgingly okay the underlying principles of the individual mandate — the legally-contested provision at the heart of the bill.

    In a separate concurrence to Raich’s majority decision — which held that Congress could criminalize the production of homegrown marijuana even in states that approved of its medical use — Scalia made what is widely regarded as one of the Court’s broadest interpretations of Congress’ ability to regulate commerce. Not only did the legislative branch have the “power to regulate activities that have a substantial effect on interstate commerce,” he wrote; it had the power to extend itself into “those measures necessary to make the interstate regulation effective.”

    Hmmmmmm.

  2. OTOTOT: Watching Al Jazeera live stream for about 4 hours and Egypt is going to get even more interesting very shortly: Tahrir [Liberation] Square has filled up with a huge crowd in prep for the todays marchs that has been named the Day of Departure. Large rally in Alexandria also. This is amazing, mesmerizing.

    The VP has said that the Army will not use violence against the protesters but that may only extend to the protesters while they are in the Square and the Defense Minister visited protesters in the Square yesterday. The Defense Minister also visited the protesters in the Square.

    I hope this goes well, that is, no bloodshed. No threat alarm bells have been rung so far to alert people in the square of attack by government agents/’sympathizers’. That may be a good sign.

  7. rafflaw, It is getting down to that in many cases. It is either a somewhat sane blue dog democrat or a gun toting tea party republican.

  8. I think Allen coming back actually helps Webb. Swarthmore, I am not a big fan of Webb’s, but he is at least sane.

  9. rafflaw, It is Jim Webb. He is not one of my favorites. I would take him over Allen though.

  10. rafflaw:

    George is baaaack! Birds, haircuts, and persons of color beware! The Macaca rides again.

  11. Swarthmore Mom,
    I hope Macaca runs again. That might help the Dem or progressive candidate running against him. Which Senate seat is up in 2012?

  12. Mespo,
    Amen to your comments and thanks for a great “Supremes” song. If only Scalia and Alito and Thomas could sing like this, we wouldn’t have them occupying chairs at the Supreme Court.

  13. George Allen is running again, too. Virginia is trying to compete with Texas, and they might be winning with their christian fundamentalist governor and the rest of the crowd.

  14. Cuccinelli’s on a fast track for one reason only: to establish his conservative street “cred” and to launch his magical mystery campaign for the Virginia governor’s office. The guy who wanted to change the Great Seal of the Commonwealth because he felt it immodest and openly opined that gay college students in Virginia could be lawfully discriminated against, now takes his reactionary road show to the Supremes for a test drive of his new version of “You CAN hurry love….” The Scalia gang will be swooning, but I hope the rest of the Court:

  15. According to the Times, “a spokeswoman for the Justice Department, said the agency continued ‘to believe this case should follow the ordinary course’ so that legal arguments could be fully developed before being presented to the Supreme Court. She pointed out that the insurance mandate does not take effect until 2014 and that the Fourth Circuit has already expedited its schedule by setting oral arguments for May.

    “The Justice Department also is considering whether to seek a stay of the Florida decision in order to clarify confusion about whether the health care act remains in effect in the 26 states that are plaintiffs in the case.”

    Absolutely right. Expedited argument in May in the Fourth. Confused and confusing judge decision of judge in Florida to be reviewed and hopefully straightened out in the Eleventh.

    No insurance mandate until 2014.

    Let the Fourth and Eleventh Circuits collect amici briefs from the con law profs of America, sort them out, clarify the issues and boil them down.

    There is no need for political grandstanding by the VA AG, who seems more comfortable making headlines than tending to the legal needs of Virginia.

  16. I would have to agree with both AY and Vince that this case is not ripe and add the only reason that Cuccinelli wants it expedited is for political reasons. I don’t see any negative impact on the country if it doesn’t go through the normal processes. The Republicans are betting that the Supremes will produce the Roe v. Wade typre decision to give them an upper hand going into the 2012 elections. That is not a reason for an expedited review, in my opinion.

  19. Cuccinelli seems to be looking for another Bush v. Gore.

    He wants the Republicans on the Supreme Court to leap in and take the decision away from the people.

    We all know how that turned out.

    The Court usually takes cases if there is a split in Circuits.

    Here, there has been no Circuit decision at all, so there is no split. District Court decisions are not legal precedents, and do not even bind other District Judges in their own District, let alone the Circuit or nation. Circuit Court decisions bind all District Courts in the Circuit.

    The Vinson decision has created total confusion with its non-injunctive, functionally equivalent declaratory judgment against the entire act nationwide. It cries out for clarification by the Circuit. The Circuit can immediately consider a request for a stay pending appeal.

    The Circuit can then determine the correct standard for severability and apply it correctly. It can clarify the constitutional issues.

    The Supreme Court has said in the past that it does not normally like to take cases without the benefit of clarifying intermediate appellate court decisions. In the old days, there was a law requiring an elaborate three-judge district court (including Circuit Court judges) to be convened to hear a challenge to the constitutionality of federal legislation. That law was repealed, in part at the request of the Court. It was clumsy and ineffective.

    The regular order for law of this importance calls for a measured briefing and argument of appeals to the respective Circuits.

  20. Ok, and you expect the circus to do what? I am not sure that this is ripe for a direct writ…

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