Tuesday, October 25, 2011

Stay Tuned! An Update in Va's Healthcare Case


October 25, 2011

Dear Fellow Virginians and Friends,

I wanted to let you know of another recent development in the healthcare cases.

It seems that the federal government has not only stopped trying to slow these cases down, but it has now taken steps to hurry the cases along.

So, what are they doing and what does it mean?

A quick explanation of the appellate process would help.

Whichever side lost in the appellate court first files its appeal to the Supreme Court.  This document is called a request for a writ of certiorari to the court of appeals.

Then the side that won in the appellate court files its response.  This document is usually a brief opposing Supreme Court review.  Obviously, the winners want to simply leave things as they were when the appellate court finished with the case.  The exception to this can occur when different appellate courts in different parts of the country decide the same question different ways, as has happened in the healthcare cases.

Finally, the losing party has the option to file a reply brief - the third brief in the series between the parties.  Interestingly however, the Supreme Court does not necessarily wait for this brief to come in to commence its consideration of whether or not to grant the appeal.

Note that when I say "grant the appeal," I only mean that the Supreme Court agrees to hear and consider the case.  It does not mean a final decision by the Supreme Court.

As you might imagine, there are time limits for filing each of these briefs.  Normally, litigants use the entire time they have to file.  Litigators are infamous for running right down to the wire.

This is where the feds' 'hurrying up' comes in.  To our surprise, they have filed most of their most recent round of briefs ahead of schedule.

What this means as a practical matter is that the Supreme Court is going to have all of the information in front of it to decide whether to take the healthcare appeals by early to mid-November.  So, it is at least possible now that we could hear from the Supreme Court some time on or after November 14th regarding how they will handle the appeals.

If we assume that the Supreme Court will take the healthcare appeals - which seems eminently reasonable - then it only remains to be seen which cases they take and which legal questions they agree to hear.

The five issues that arise out of the states' cases include:

Two standing issues:

-Do states have standing to sue?
-Do individuals have standing to sue?

Two issues related to the merits of the case:

-Does the federal government have the power under the commerce clause to order individuals to purchase government-approved health insurance against the will of such individuals?  This is the heart of the case, and this question will certainly be granted.

-Does the federal government's power to tax include either the health insurance mandate itself or the financial penalty assessed against an individual that fails to buy the government-approved health insurance such that the taxing power provides the constitutional basis for the health insurance mandate?

One other question, if we win on the previous questions:

-What is the appropriate remedy?  We have asked the court to invalidate the entire law.  The federal government has said that if the individual mandate is unconstitutional, the changes to the private health insurance market cannot work.  The feds' proposed remedy would still leave the budget-busting Medicaid and Medicare increases in place along with the 400+ other programs instituted under the federal health case law.

The one pleading the feds have yet to respond to is ours!  That response is due this week.  I'll let you know if there are any surprises.

Update on Meeting our 10K Fundraising Goal

We recently asked all of you for donations to help us finish out the 2011 elections strongly.  I want to re-urge you to PLEASE make a last-minute, pre-election donation so that we can help our candidates finish strongly.  We have a real shot at getting to a majority in the State Senate and picking up more GOP seats in the House of Delegates.  Please help us finish strong by clicking here today!

We're very close to our goal - but could really use the last minute help. 

Thank you!


Ken Cuccinelli, II
Attorney General of Virginia

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