- The Washington Times - Thursday, April 14, 2011

WASHINGTON | Virginia Attorney General Kenneth T. Cuccinelli II will likely find out Friday whether the state’s lawsuit over federal health care reform legislation will be fast-tracked to the U.S. Supreme Court.

Mr. Cuccinelli petitioned the Supreme Court in February to bypass the normal appellate process and hear his case challenging the constitutionality of the March 2010 law requiring, among other things, that Americans purchase health care coverage. If the court grants his request, the case will be redirected out of the 4th U.S. Circuit Court of Appeals, where it’s scheduled for a May 10 hearing.

Mr. Cuccinelli told The Washington Times that could be a long shot, considering the Supreme Court rarely expedites cases. On the other hand, he thinks the nature of the health care challenge could give it a good chance.

“They only grant one or two of these a decade, so I know which way I would bet,” Mr. Cuccinelli said. “Ours fits the bill better than some of the ones they’ve already granted, so we’ll have to see.”

Either way, the case is almost certain to end up in the Supreme Court. If the court denies the request to expedite, the case would continue through the circuit court before making its way to the Supreme Court through the appeals process. Under that scenario, Mr. Cuccinelli predicts a June 2012 ruling.

Governors in 28 states have sent a letter to President Obama, urging him to drop his objections to asking the Supreme Court for an expedited review and to grant Mr. Cuccinelli’s request to end uncertainty over mandates contained in the legislation.

Right now, Virginia’s lawsuit is separate from a similar challenge filed by former Florida Attorney General Bill McCollum and signed onto by 25 other states. Mr. Cuccinelli said the two lawsuits could get rolled together before the Supreme Court.

While the lawsuits challenge the constitutionality of the entire health care legislation, the most controversial part is a mandate that requires all individuals to purchase health insurance by 2014 - when most of the law’s provisions kick in - or pay a penalty.

In the five courts to rule on the provision so far, three judges appointed by Democrats have ruled that it is constitutional and two judges appointed by Republicans have ruled it is unconstitutional.

Mr. Cuccinelli said he’s “cautiously optimistic” that he has a better argument than the U.S. Justice Department, which opposes fast-tracking the case.

“Everybody else was screaming, shooting from the lip a year ago about how awful our case was, and our analysis of our case has not changed. Our analysis of the government’s case has not changed,” Mr. Cuccinelli said. “What that tells me is, we did our homework before we got started on all this, and a lot of other people didn’t.”