From NBC's Pete Williams
What's the point, asks Virginia's attorney general, of letting the federal appeals courts chew over the constitutionality of the health care law when only the U.S. Supreme Court can decide whether it's willing to expand the powers of Congress?
That's the question at the heart of an unusual request filed Wednesday by Virginia, asking the Supreme Court to bypass the appeals courts and take up a review of the health care law as soon as possible. The Supreme Court grants such requests exceedingly rarely, and one justice signaled just last week that she would resist such a move.
The Justice Department has already indicated it will oppose this request.
Ken Cuccinelli (R), Virginia's attorney general, argues that this is the kind of case the justices should take up, because conflicting district-court decisions about the constitutionality of the health-care law have left states and businesses unsure about which requirements, if any, will survive the legal battle.
"States, citizens, and the economy remain mired in uncertainty," he says in his court filing. "Citizens and businesses are widely believed to be reducing spending and delaying hiring in response to the overhand of uncertainty."
Allowing lawsuits filed by Virginia and other states to take their normal course through the appeals courts "will not further focus the controlling issues," Cuccinelli writes. "It is not clear to what extent the courts of appeal are even entitled to engage in independent legal development in the face of binding precedent" from the Supreme Court.
Some aspects of his court filing lean more on political arguments than legal ones. He says, for example, that the health care law "has roiled America. The party that unanimously opposed" the law in the House "has just seen its largest electoral gains in over seventy years."
At a public forum in Washington last week, Supreme Court Justice Ruth Bader Ginsburg suggested that she, for one, would look unfavorably on an attempt to bypass the appeals courts. Asked about the practice in general, but reminded that the health care issue was coming, Ginsburg said of the appeals process, "In most cases, travel is rather slow. And one reason that that's good is by the time that the case comes to the Supreme Court, other courts have considered the issue.
"We will get a range of views, we will get good minds on federal courts of appeals, district courts, giving their best interpretation of the Constitution as it applies to this particular law. So, we do so much better when we have the views of other federal judges who are certainly no less qualified then we are," Justice Ginsburg said.