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

[sabra]

Source: MSNBC

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.

Read more: http://firstread.msnbc.msn.com/_news/2011/02/03/5981821-va-attorney-general-wants-scotus-to-take-up-health-law-now

[Newest Reality]

1. Universal Health Care, NOW! - NT

[kirby]

2. Correct me if I am wrong, but...

the issue is not as framed. The issue is not whether the 'law is constitutional or not', it is whether one provision of the law relating to the mandate is constitutional. Throwing out that provision does not invalidate the entire law, only that single provision.

[beac]

3. Not according to that wingnut judge in Florida.

http://firstread.msnbc.msn.com/_news/2011/01/31/5961248-florida-judge-rules-health-care-law-unconstitutional-

Here in VA, our AG is a) an UBER wingnut and b) grandstanding for a future run for the governorship. Yet another embarassment for my poor state. :banghead:

[kirby]

4. Interesting...

How is the law/mandate determined to be 'not severable'? Thanks for the link and I read that portion of the opinion on page 63, (4)Severability. His argument seems a bit flimsy. It will be ironic is the law of invalidated because of the Obama administrations requirement for the mandate to protect the insurance companies.

Regardless, considering a lot of stuff does not kick in until 2014, i fail to see the urgency in rushing the case to the Supreme Court and bypassing the appeals. Sounds like grandstanding to me too.

[Psephos]

14. To answer your question, severability depends upon writing a severability clause into the law.

No such clause was inserted into the law as passed.

facepalm

Now, instead of relying upon an explicit clause, a legal theory must be applied to "find" conditions for implied severability. As you might expect, this is considerably more difficult.

[renegade000]

13. another embarassment indeed

Ok, I get it, Deeds wasn't a polished, slick politician, so he lost to McDonnell. But Cuccinelli? It's not like all the liberal VA blogs didn't know this guy was totally off his rocker before he got elected... we were warned...

[sendero]

7. The mandate is the centerpiece ..

..... of the entire package. Take that out and nothing works.

[melm00se]

9. then severability may not apply

severability does not apply if the part cut away substantially alters the contract (this is where this most often applies))

[melm00se]

8. normally you are correct

when there is a severability clause written into the law (or contract). when it is omitted, its an all or nothing deal.

this is one of the dangers rushing a piece of legislation. the only real way of going this fast was to have multiple people working on the document and it's easy for something this small (but as hindsight may show so critical) to get overlooked and with no final and complete reading of the legislation from word 1 on page 1 right thru to the last word on the last page it got missed.

this omission may very well be the most critical oversight in the early part of the 21st century. it may very well give the repubs the loophole thru which they can overturn the whole damn thing and toss this whole law in the trash. it 20 or so years to bring it back from the last incarnation, it may take that long for the wheel to go full circle again.

i know in some states that severability is part of the law so its not a requirement to include such language (but it's wise) but i don't know if that applies to federal law.

[kirby]

11. In the ruling...

The judge said that lack of a severability clause does not raise a presumption against severability, but his justification seemed more to the point that the defendants (Obama HHS) argued in court (and in their legal brief) that the entire law would be meaningless unless the mandate was included.

He also wrote that an early draft of the law contained a severability clause but was removed in the final draft which was an indication that Congress' intent was that they did not want a severability clause.

[melm00se]

15. then Congress

but was removed in the final draft which was an indication that Congress' intent was that they did not want a severability clause.

very well may lose that toss of the dice.

[Thav]

5. I find this whole situation interesting.

Here in Iowa, we're required to carry liability insurance to own a vehicle. If this part of the health care law is struck down, that should make this requirement to be not constitutional as well.

That said, Medicare for All.

[Igel]

12. This keeps coming up.

Were Iowa the federal government, and were vehicle ownership mandatory, I suspect you'd be right.

But notice the subjunctive.

[Gman]

6. The more courts that rule HCR constitutional (and there are far more than not)

the harder it will be for the SCOTUS to justify overruling so many other courts and judges. Therefore, they are running an end run around all the other courts to minimize the number of courts that rule it constitutional.

[Magleetis]

10. It's only judicial activism

if the repugs disagree with the ruling.