As one might expect, Virginia Attorney General Ken Cuccinelli noticed that today marks and anniversary.

Dear Fellow Virginians and Friends,

Here on the first anniversary of the signing of the federal healthcare bill and Virginia’s lawsuit, I wanted to update you on developments in Virginia’s healthcare case and let you know what to look for in the next couple of weeks.

Virginia is on a ‘dual track’ in the case at the moment.  We have a motion to expedite the case pending in the U.S. Supreme Court and at the same time we are briefing the case for presentation to the 4th Circuit Court of Appeals – the appellate court that covers Virginia.

Supreme Court

We have asked the Supreme Court to expedite the case under its Rule 11.  They only do this for one or two cases per decade, so don’t bet a lot of money on this one; however, the nature and cost of the healthcare law is the type that they have expedited in the past, so we’ll see what they do.

We submitted the final brief on expediting this week.  The Supreme Court will consider our request on April 15th. We could see a decision by the Supreme Court as soon as April 18th.

What does “expediting” mean under Supreme Court Rule 11?  Basically it means to skip the appellate court and go straight to the Supreme Court.

There are three levels of federal courts: district courts, appellate courts (aka circuit courts), and the Supreme Court.  We won in the district court in December.  The federal government appealed to the 4th Circuit Court of Appeals (the 4th Circuit covers Maryland, Virginia, West Virginia, and the Carolinas).  In the ordinary course of things, the Supreme Court would follow the Court of Appeals.

Under Rule 11 of the Supreme Court, Virginia has requested that the Supreme Court pull the case out of the Court of Appeals and hear it directly.  This could cut almost a year off of the case, resulting in ENORMOUS savings to both state governments and the private sector if the law is found unconstitutional and stricken.  And why go through all the hoops of getting ready to implement a law that may be stricken anyway?  Oh, I’m sorry, there I go thinking logically again… naturally the Obama administration is opposing this effort… I know you’re shocked.

You might ask yourself, ‘won’t the Supreme Court want to hear from Appellate Court judges?’  And the answer is ‘maybe.’  Remember this case is pure legal argument.  There are no documents or other discovery to consider, no trial witnesses, in fact there was no trial at all.  So, we are re-arguing the same pure legal arguments from the district court again in the Court of Appeals.  Also, five different judges have addressed the merits of the case, with more to come.  So, there are going to be an unusual number of judges’ opinions to look at – should the Supremes so choose – without even getting to the appeals courts.

Thus far, we are the only state requesting that the Supreme Court exercise its discretion to expedite the case.  Whether or not the Supreme Court decides to expedite the case is entirely within their discretion, so it’s hard to tell what may happen.  When we know, I’ll let you know!

4th Circuit Court of Appeals

At the same time, we are about to submit our first of two briefs in the appellate court.  In their opening brief, the feds made essentially the same arguments that they made in the district court.  And while we adjust our presentation to include elements of other cases, our arguments will be the same as in the district court.

We will argue our case on May 10th before a three judge panel of the 4th Circuit (assuming the Supreme Court does NOT expedite the case, thereby taking it out of the appeals court).  We will not know who those three judges are until the day of the argument.

Following our hearing, it would then be reasonable to look for a ruling around mid-July.  I expect each side to react differently depending on who wins.

If Virginia wins in the 4th Circuit, I expect the federal government to ask the full 4th Circuit to rehear the case en banc (i.e., with all 14 judges of the 4th Circuit participating).  This would be consistent with their efforts to drag the case out, as that may add several more months in the 4th Circuit, at which point, whichever side loses en banc will appeal to the U.S. Supreme Court.

If the feds win in the 4th Circuit, I expect that we will immediately appeal to the U.S. Supreme Court.

Once we get to the Supreme Court, I would expect to brief and argue the case during the next term of the Court.  The next term of the Court will run from the beginning of October 2011 through the end of June 2012.

I would then expect that a final decision in our case will most likely be made (best guess) toward the end of June 2012.  I think it will be very hard for the Obama administration to drag the case beyond June of 2012.

Obviously, that is very interesting timing in light of the Presidential race.  And it further baffles me as to why the President would want to drag the case as close to Election Day as possible.

The only rationale I can think of is the following scenario: given that this case is being carried forward primarily (though by no means exclusively) by Republicans, if we succeed in winning the case, having the individual mandate declared unconstitutional, and having the entire law stricken (as happened in the Florida case), then I believe House Republicans will need to have their alternative healthcare reforms already prepared and ready to submit.  If the Republicans in the House are not so prepared, then rather than voters reacting against the President due to the loss, they will be angry at Republicans for the appearance of just saying no without having positive alternatives.

That’s the only reasonable explanation for the consistent efforts to delay the case being undertaken by the Obama administration.

Again, if something happens in the 4th Circuit, I’ll get back to you again to update you on the case!


Ken Cuccinelli, II
Attorney General of Virginia

If there is a case that ever deserved to be expedited, this is most certainly it.

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