“WASHINGTON —The Supreme Court’s rejection Monday of a request from Virginia officials to hear the constitutionality of the federal health-care law ensures that the legal battle will play out first in lower appeals courts.
The first action will be in the U.S. Court of Appeals for the 4th Circuit, in Richmond, which has scheduled May 10 arguments on the law that has become the leading domestic initiative of the Obama presidency and that continues to divide congressional Republicans and Democrats. Other circuit courts of appeals have scheduled hearings in related lawsuits, and it is likely high court review of the key disputed provision, requiring people to buy insurance coverage or face a tax penalty, would now come in mid-2012 rather than the middle of this year.
Virginia Attorney General Ken Cuccinelli said in a statement Monday that while officials were disappointed by the high-court order, they were not surprised. The justices rarely grant requests to expedite a dispute before at least one lower appeals court has ruled. Referring to conflicting U.S. district court decisions over the past several months on whether the law is constitutional, Cuccinelli said the state had been seeking to remove “this crippling and costly uncertainty as quickly as possible.”
The Department of Justice had urged the high court not to intervene, noting that Virginia had challenged only the individual-insurance provision that does not take effect until 2014. Justice Department spokeswoman Tracy Schmaler said the department had no comment on Monday’s order.
The high court’s action in Virginia v. Sebelius was issued with no recorded vote or public dissent. In the few instances when the justices have taken up a case early, it has been on matters of imperative public importance, such as in the 1974 case involving President Nixon’s Watergate tapes.
Since the health-care law was passed in March 2010, lower U.S. district courts have split on whether Congress had the authority to pass the individual-insurance mandate. The trial judges who ruled against it have said Congress went beyond its power to regulate interstate commerce in the provision. Judges who have upheld it said the insurance requirement does indeed flow from congressional power to regulate commerce in the states because a decision not to buy health insurance raises costs for everyone an affects commerce.
Virginia had won in the lower trial court, as U.S. District Court Judge Henry Hudson had declared the individual mandate unconstitutional. In his opinion in Virginia v. Sebelius, Hudson said opting not to purchase health insurance was not an “economic” activity to be regulated by Congress.
Another Virginia-based judge, U.S. District Judge Norman Moon had upheld the provision in a separate case, Liberty University v. Geithner. Moon said Congress has broad power to regulate local matters that affect the economy, “even where the regulated individuals claim not to participate in interstate commerce.”
All nine justices participated in Monday’s rejection of Virginia’s petition. Neither Virginia nor the Obama administration, nor any outside group that filed a “friend of the court” brief in Virginia v. Sebelius, had asked a justice to sit out the case. But 90 House Democrats have written to Justice Clarence Thomas requesting that he not participate in any dispute over the health-care law because his wife, Virginia, a conservative activist, has publicly opposed it.
Separately, Sen. Orrin Hatch, R-Utah, suggested on Fox News inearly February that Justice Elena Kagan should not take part because she was U.S. solicitor general, working for the Obama administration, when the health-care legislation was developed.
Thomas and Kagan have not publicly commented on the recusal question since the health-care law was challenged in the courts.