Supreme Court Won't Expedite Health Care Challenge

The Supreme Court won't fast-track a challenge to the constitutionality of the 2010 health care law. The challenge was filed by the state of Virginia and its attorney general. The case will be heard in the appeals courts instead — though it still could reach the high court before the 2012 elections.

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STEVE INSKEEP, host:

Let's talk a little bit more about last year's health law. The Supreme Court has declined to step in early to decide that law's constitutionality. Yesterday, the Court denied a petition by Virginia's attorney general to take up the case immediately.

As NPR's Julie Rovner reports, the decision does not indicate what the Court might eventually do.

JULIE ROVNER: It's pretty rare for the high court to agree to take a case directly from a trial court.

Professor TIMOTHY JOST (Washington and Lee University Law School): The case has to be of, quote, "such imperative public importance," unquote, that it requires immediate determination in this court.

ROVNER: Timothy Jost is a law professor at Washington and Lee University Law School in Lexington, Virginia. He says the Court usually limits such expedited cases to those involving foreign relations, national security or national crises.

Prof. JOST: And this doesn't rise to that level.

ROVNER: That's not how Virginia Attorney General Ken Cuccinelli sees it. He told Fox News in February that states and businesses shouldn't have to spend money to implement a law that could be struck down, since separate federal district court judges have ruled that the law is both constitutional and unconstitutional.

Mr. KEN CUCCINELLI (Attorney General, Virginia): And so, we clearly have a split and a great deal of uncertainty across the country, about whether or not this law is going to be enforced in a year and a half or so, and massive costs to prepare for the law.

ROVNER: At issue is the section of the law that requires nearly every American to have health insurance starting in the year 2014, or else pay a tax penalty. So far three district court judges have explicitly found that requirement an acceptable use of Congress's constitutional authority to regulate commerce. Several others have dismissed lawsuits on more technical grounds.

Two judges however, one who heard Cuccinelli's case in Virginia and another who heard a multi-state case in Florida, have ruled the mandate is unconstitutional. Most court-watchers do expect the case to reach the Supreme Court when it's exhausted the appeals process. That's likely to be late this year.

And one of the interesting aspects to yesterday's order, says law Professor Jost, is that it was apparently decided by all the justices, including Clarence Thomas and Elena Kagan.

Prof. JOST: Which may suggest that both of them believe they are capable of deciding this case.

ROVNER: Combatants on both sides of the political aisle have urged those justices to recuse themselves; Kagan, because she was solicitor general in the Obama administration while the health law was being pursued, and Thomas because his wife was active in groups opposing it.

It looks like neither will sit this one out, however.

Julie Rovner, NPR News, Washington.

INSKEEP: It's MORNING EDITION from NPR News.

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