Tuesday, May 10, 2011

The Race to the Supreme Court

    Ever since the passage of the Affordable Care Act in 2010 there has been a common understanding that the United States Supreme Court will have to determine the constitutionality of the law.
    Litigants have not disappointed us. According to the Department of Justice, 31 lawsuits have been filed across the country challenging a law which President Obama made the centerpiece of his first years in the White House. These cases are starting to reach the United States Courts of Appeals, and from there it is only a certiorari petition away from the Supreme Court which has not been in a hurry to hear them: the Court denied a request from the Attorney General of Virginia that the Court invoke a rarely used procedure to allow Virginia to skip over the United States Court of Appeals and go directly from a United States District Court to the Supreme Court.
    So this morning Virginia and another party challenging the law found themselves instead in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. The court was long seen as the most conservative federal circuit court, but appointments by President Obama have made it more evenly divided ideologically. 
    The central issue in most of the challenges to the statute is the claim that Congress does not have the authority under either the Commerce Clause or its taxing power to require that people obtain health care insurance. In the cases argued this morning one District Judge ruled that the insurance provision is constitutional, while another District Judge ruled that it is not. In June, the United States Courts of Appeals for the Sixth and Eleventh Circuits will also hear oral arguments in cases challenging the statute. 
    The two cases argued this morning are Liberty University, Inc. v. Geithner and Commonwealth of Virginia v. Sebelius. A New York Times article on the cases working their way up to the Supreme Court can be found here

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