As expected, Virginia Attorney General Ken Cuccinelli’s effort to bypass the appellate court has failed with a denial at the United States Supreme Court. The Rule 11 motion was turned down — as it is in the vast majority of cases. The Obama Administration opposed the motion and is expected to continue to try to slow the momentum of the challenge.
Cuccinelli has the cleanest challenge in that it focused only on the mandatory health insurance provision as opposed to the broader Florida action. The latter action, however, has now been narrowed.
There were plausible arguments for the motion, but the fact that the mandatory provision will not kick in for a year or so probably undermined the effort. Even more significant was the fact that various appellate courts are preparing to hear or rule on the matter. The Court prefers to have lower courts be heard on such issues before ruling.
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. See 28 U. S. C. § 2101(e).
Virginia will now face the Fourth Circuit panel in May — and a difficult challenge over standing. It is an ironic position for challengers to the heath care act. Conservatives jurists have been steadily narrowing standing for decades — making it increasingly difficult to get judicial review in actions against the government. Many of us have criticized this trend as creating areas where virtually no one can enforce constitutional principles or challenge a law. Now the greatest challenge in this and other cases may be the more conservative judges and justices.
The rejection also means that the health care issue will likely move to the Supreme Court in the midst of the final year of campaigning for the White House. Polls show the majority of the public opposed to the plan with a majority of states now seeking to strike down the act in federal court.
Source: National Journal