By Rosalind S. Helderman
Washington Post Staff Writer
Thursday, February 3, 2011; 6:07 PM
RICHMOND - Virginia will ask that the U.S. Supreme Court immediately review the state's constitutional challenge to the federal health-care overhaul, a rare legal request to bypass appeals and ask for early intervention from the nation's highest court, Attorney General Ken T. Cuccinelli II said Thursday.
Cuccinelli (R) said that conflicting court decisions about the law's constitutionality have created sufficient uncertainty about implementation of the sweeping law to justify speeding Supreme Court review.
The Justice Department will oppose the motion, saying that the case should be fully heard by lower courts before the Supreme Court takes action.
The high court has granted such requests infrequently, and many experts said they think Cuccinelli's filing is a longshot. Supporters of the law said that the provision at the heart of the legal dispute - a requirement that individuals buy health insurance - will not go into effect until 2014.
A U.S. District Court judge in Virginia ruled in December that it is unconstitutional to require people to buy health insurance, as envisioned in the law. The federal government appealed, and the Fourth Circuit Court of Appeals is scheduled to hear the case in May.
A federal judge in Florida ruled this week in a suit filed jointly by Florida and 25 other states that the law is unconstitutional. In other cases, two other federal judges have said the law is constitutional.
According to court rules, petitions to bypass appellate review are granted only in cases that are of "such imperative public importance" that they require changing normal procedures.
Cuccinelli will argue that conflicting opinions over a law that will reshape one of the largest sectors of the economy justify the speedy review.
"Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone's best interest," he said in a statement.
But a spokeswoman for the Justice Department said that the expedited review would not significantly change the case's timeline, since it is to be heard in May, likely allowing the Supreme Court to take up the case during its next term.
"The Department continues to believe this case should follow the ordinary course of allowing the court of appeals to hear it first so the issues and arguments concerning the Affordable Care Act can be fully developed before the Supreme Court decides whether to consider it," spokeswoman Tracy Schmaler said in a statement. "Virginia's suit is based on a state statute that is not applicable nationwide."
Cuccinelli had indicated that he was considering filing a petition for certiorari with the court. He originally requested that the Justice Department join the motion. He said Thursday that he would proceed with the request, even without agreement from his federal opponents.
Legal experts have said they think the court is unlikely to grant Virginia's action, because the justices generally appreciate the opportunity to review lower-court opinions.
Additionally, Cuccinelli's action might be viewed as an attempt to achieve a tactical advantage by denying the appeals court the opportunity to overturn his December win. His action could also be perceived as an effort to maintain the head start that Virginia's case has had over the separate case filed jointly by other states in Florida and ensure that his is the case the Supreme Court will use to decide the constitutionality of the sweeping health-care law.
"This is exceptionally rare," said Jonathan Turley, a professor at George Washington University's law school. "It goes against a number of operating principles of the court."
He said justices might be wary of allowing the Cuccinelli suit to leapfrog over lower courts in part out of fear of opening a floodgate of similar requests. But he said the national import of the case means that their action is not out of the question.
"A credible case can be made for expedition, but it's going to be a long row to hoe for Attorney General Cuccinelli," Turley said.
Gov. Robert F. McDonnell (R) praised Cuccinelli's action, calling it a "proper and necessary step" to achieve a legal resolution to the more than two dozen challenges to the law.
"All other court decisions and reviews prior to that moment will serve simply to exacerbate the uncertainty and continue the delay," McDonnell said.