by Lee Ross | December 13, 2010
It is only a matter of time that either Monday’s case from Virginia, one of the other 20 or so lawsuits, or a combination of cases will end up before the Supreme Court. It is quite possible that a high court ruling could come in June 2012 right in the thick of the next presidential campaign.
Monday’s ruling from Judge Henry Hudson puts this case ahead of another closely watched suit in Florida joined by 20 states and the National Federation of Independent Businesses. That case will be heard Thursday with a ruling, even if expedited, not likely to come until early next year.
A Justice Department spokeswoman essentially confirmed that the government would appeal Monday’s ruling. “We are disappointed in today’s ruling but continue to believe – as other federal courts in Virginia and Michigan have found – that the Affordable Care Act is constitutional,” Tracy Schmaler said in a statement to Fox News. “There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law and we are confident that we will ultimately prevail.”
Assuming the government does appeal the decision, the man pushing Virginia’s case, Attorney General Ken Cuccinelli, has suggested that he may ask the Supreme Court to hear the case without a lower court appeal.
In another health care challenge, from California, the Supreme Court rejected without comment an attempt to bypass this critical review phase.
If the high court does not get involved in the Virginia suit right away then the appeal will go to the Richmond-based Fourth Circuit U.S. Court of Appeals. A three judge panel of that court–which has a conservative reputation–would most likely hear the case. Although that step could be skipped in favor of consideration before the entire 13-member bench.
The Fourth Circuit’s final decision, which could come in the second half of 2011 would then likely be appealed to the Supreme Court. The justices then have the option of granting the case as a stand-alone matter or combine it with other cases that are in the legal pipeline. It could also decide not to take the case, which it often does to the thousands of petitions it reviews each year, but would be an extraordinary decision given the unique nature of this law.
As Judge Hudson noted Monday, this case “turns on atypical and unchartered applications of constitutional law interwoven with subtle political undercurrents. The outcome of this case has significant public policy implications. And the final word will undoubtedly reside with a higher court.”
Fox’s Mike Levine contributed to this report.