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VA attorney general wants SCOTUS to take up health law -- now

Virginia Attorney General Ken Cuccinelli in a January 2011 photo in Richmond, Va.

From NBC's Pete Williams
The Virginia official most responsible for his state's challenge to the health-care law says he will ask the U.S. Supreme Court to take up the legal dispute over the law quickly, bypassing the federal appeals courts.

Federal law does allow for appealing a trial judge's ruling directly, without waiting for an intermediate appeals court to review the case. It is, however,  a legal gambit disfavored by the Supreme Court and rarely granted. 

Even so, Virginia Attorney General Ken Cuccinelli (R) says this is the sort of exception the rules were intended to accommodate.

"Given the uncertainty caused by the divergent rulings of the various courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible," he said. 

"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," Cuccinelli said.

The Justice Department opposes the move, partly on the grounds that if any case should be used to fast-track a decision, this one isn't it, given that the ruling the state seeks to appeal is partly based on fact unique to Virginia -- a state law declaring that residents cannot be required to buy insurance.

"This case is one of two that are already scheduled for argument in the 4th Circuit this May, so going through the usual process would make little difference in timing as to when the Supreme Court could hear it, while allowing the appellate court to thoroughly evaluate the issues," said a Justice Department spokeswoman, Tracy Schmaler.

"The individual responsibility provision does not go into effect until 2014, so there is more than sufficient time for this case to proceed first in the court of appeals," she said.

Former Chief Justice William Rehnquist described the process of leap-frogging over the appeals court as "an extremely rare occurrence." It has been granted in cases of national emergency, such as the Truman administration crisis over nationalizing steel mills and the showdown over Watergate tapes during the Nixon administration.

But the Supreme Court has declined to hear other cases that were deemed to be of national importance, denying immediate review, for example, in the 1998 case that sought to test whether President Clinton could be sued while in office.

Cuccinelli undeniably has a point, because some states are confused about the effect of the two federal court rulings declaring the law unconstitutional. But the split among the lower courts is precisely the sort of condition that the Supreme Court prefers to let the appeals courts sort out before the justices wade in.