Virginia Files Petition for Expedited Supreme Court Review
As expected, Virginia has filed it’s petition with the Supreme Court seeking expedited review of its lawsuit challenging the Affordable Care Act:
Attorney General Ken Cuccinelli has filed his petition seeking an expedited ruling from the U.S. Supreme Court on the federal health-care overhaul.
Cuccinelli argues that the case is of “imperative national importance,” requiring an immediate determination by the high court.
He also says the case is a good vehicle for resolving constitutional issues that have been variously decided around the country.
Also today, Gov. Bob McDonnell is one of 28 Republican governors who signed a letter to President Barack Obama asking him to direct the United States Department of Justice to support an expedited appellate process for the pending health-care lawsuits to reach the United States Supreme Court as soon as possible
The petition is embedded below, but ACA Litigation Blog’s Brad Joondeph says that there may be a fatal flaw in the petition:
On page 5 of its petition for certiorari, Virginia states as follows (as part of its “Statement of the Case”):
“The Attorney General of Virginia has the duty to defend the legislative enactments of the Commonwealth. Virginia Code §§ 2.2-507; 2.2-513. When the President signed PPACA on March 23, 2010, the validity of both the Federal and State enactments were drawn into question. If PPACA was supported by an enumerated power, then it would prevail under the Supremacy Clause. If not, the Health Care Freedom Act would be a valid exercise of the police powers reserved to the States. In order to resolve this conflict, Virginia filed a Complaint in the United States District Court for the Eastern District of Virginia for Declaratory and Injunctive Relief.”
The precise problem with Virginia’s argument (and the rulings of Judge Hudson and Judge Vinson on this point) is the italicized sentence. It is simply wrong that if the ACA is unconstitutional, the Virginia Health Care Freedom Act “would be a valid exercise of the police powers reserved to the States.” If Virginia had enacted a law declaring that, as a matter of state law, no Virginia citizen shall be required to acquire health coverage, that would be a valid exercise of the state’s legislative authority. But in our federal system, no state has the authority to control federal law, even as it operates within its borders. See McCulloch v. Maryland (on the question of the validity of Maryland’s tax, not the discussion of the Necessary and Proper Clause).
Thus, the Virginia Health Care Freedom Act, from its inception, was never–and could never be–a valid exercise of the state’s police powers, no matter the constitutional status of the ACA. It was void ad abnitio.
This goes to the merits of the case, of course, and the first question that Virginia must answer is whether there are grounds for an expedited appeal. As I’ve argued before, this seems unlikely. Therefore, I’d say the odds are against the Supreme Court accepting early review of this case.