- The Washington Times - Monday, April 25, 2011

Virginia Attorney General Kenneth T. Cuccinelli II said he is disappointed but not surprised the U.S. Supreme Court rejected his request to fast-track the state’s lawsuit challenging federal health care law.

Although the case likely will end up before the Supreme Court eventually, Mr. Cuccinelli asked the justices in February to redirect it out of federal appeals court and resolve questions about its constitutionality more quickly. With the court’s denial of his request, the case will remain on its current schedule to be heard May 10 in the 4th U.S. Circuit Court of Appeals in Richmond.

Mr. Cuccinelli said that asking for a speedier decision was about removing a “crippling and costly uncertainty” for governments and businesses as they figure out how to comply with a mandate requiring all individuals to acquire health insurance.

Virginia and other states are already spending huge sums to implement their portions of the health care act, businesses are already making decisions about whether to cut or keep employee health plans, and citizens are in limbo until the Supreme Court rules,” Mr. Cuccinelli said.

The Justice Department opposed Mr. Cuccinelli’s request to expedite the case. Historically, the Supreme Court rarely has granted such requests.

While there had been questions of whether Justice Elena Kagan would participate in the court’s order, she apparently took part as there was no announcement that any justice sat out. Justice Kagan served as Mr. Obama’s solicitor general when the law was passed. She indicated in Senate testimony last year that she played no role in the administration’s planning and handling of challenges to the law.

Mr. Cuccinelli has predicted the case will reach the Supreme Court by June 2012, after winding its way through several appeals courts.

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.

It also requires states to set up health-care exchanges, requires insurance companies to cover children up to age 26 and dramatically expands Medicaid.

Virginia Gov. Robert F. McDonnell said all sides could be better served the sooner the Supreme Court rules on the individual mandate.

“The court’s refusal to hear this case now will force states and businesses to incur increased costs and expend significant effort to begin preparations necessary to ensure compliance with this law, which ultimately may be ruled unconstitutional,” said Mr. McDonnell, a Republican.

In the five courts to rule on the provision so far, three Democrat-appointed judges in Michigan, Virginia and the District of Columbia have upheld it, and two Republican-appointed judges in Virginia and Florida have ruled it is unconstitutional.

In December, U.S. District Judge Henry E. Hudson in Richmond declared the individual mandate unconstitutional. U.S. District Judge Roger Vinson of Florida came to the same conclusion in January, striking down the law in its entirety.

Both rulings have been put on hold pending appeals.

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



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