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Ginsburg chills healthcare speedup hopes

By MICHAEL KIRKLAND   |   Feb. 13, 2011 at 3:30 AM   |   Comments

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WASHINGTON, Feb. 13 (UPI) -- Bad news for those who think watching the healthcare challenges slowly work their way through the federal courts is like watching paint dry: The latest attempt by Virginia to speed things up isn't given much of a chance.

Challenges to President Barack Obama's federal healthcare reform have been popping up all over the country. But so far, the rulings have been mixed.

A federal judge in Virginia struck down as unconstitutional the law's requirement that everyone has to pay for health insurance; and a federal judge in Florida ruled the same thing, adding that since the individual mandate cannot be severed from the entire law, then the entire law must go.

Meanwhile, at least three federal judges have ruled against separate challenges on strictly technical grounds.

Besides the Virginia suit, 25 states have joined Florida's healthcare reform challenge and Oklahoma has filed its own suit.

Peppery Virginia Attorney General Ken Cuccinelli, a victorious challenger at the trial court level, said earlier this month he intends to ask the U.S. Supreme Court to take the case directly, skipping the federal appeals court level.

Cuccinelli is racing Florida for the glory of getting the first case to the Supreme Court.

A hard-shell Republican, Cuccinelli appears to prefer having his challenge judged by the enduring 5-4 conservative majority in the Supreme Court rather than face the risks that might be incurred at the appellate level -- even though the 4th U.S. Circuit Court of Appeals in Richmond, Va., is one of the more conservative appellate panels in the country.

"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 in a statement.

However, a spokeswoman for the U.S. Justice Department said expediting the challenge would not be much of an advantage, since the appeals court has agreed to hear the Virginia case in May, The Washington Post reported.

Under any timeline, whether the appeals court hears the case or not, the Supreme Court would be unlikely to hear the case until next term.

The Justice Department is opposing Cuccinelli's proposal. The Obama administration argues Congress has the power to enact healthcare reform under the commerce clause of the Constitution -- the healthcare industry occupies about a sixth of the U.S. economy.

The Post reported legal experts say they think the Supreme Court is unlikely to grant Virginia's request, .

"This is exceptionally rare," Jonathan Turley, a professor at George Washington University's law school, told the Post.

But Gov. Robert F. McDonnell, a fellow Republican and religious conservative, said Cuccinelli's request for an immediate high court review was necessary. "All other court decisions and reviews prior to that moment will serve simply to exacerbate the uncertainty and continue the delay," McDonnell told the newspaper.

At least one very authoritative voice says, not so fast.

Speaking at The George Washington University in Washington after Cuccinelli announced his plan, Supreme Court Justice Ruth Bader Ginsburg strongly suggested the healthcare reform challenge would have to reach the Supreme Court through the normal route.

Ginsburg was interviewed in front of a packed Lizner Auditorium by Nina Totenberg, NPR's legal correspondent.

The justice described the high court as a "reactive institution," adding, "We don't decide, 'We better get this or that case sooner rather than later," the campus newspaper The Hatchet reported.

Some high-profile cases have received a very rare quick Supreme Court review, Ginsburg said, but the justices feel they benefit from reading lower-court opinions: "We have a range of views before us and can make a better informed decision."

Ginsburg's comments in the student newspaper are gradually filtering out to the legal blogosphere.

Lyle Denniston, the canny dean emeritus of the Supreme Court press room, said in SCOTUSBLOG.com that since Virginia had not yet filed its request, it's conceivable Ginsburg did not know she was commenting on an issue that would shortly be before the high court.

But he said it was also possible Ginsburg was directly addressing Virginia's chances.

Even after a filing, the Supreme Court would not act until it gets a brief in opposition from the Justice Department. Then four of the nine justices would have to vote to hear the case on an expedited basis.

Ashby Jones, on the Wall Street Journal Law Blog, also cited Ginsburg's comments. As for the chances of Virginia getting the fast-track constitutional challenge straight to the Supreme Court, Jones said, "Uh, yeah, don't hold your breath."

Of course, the experts could always be wrong. That's what makes court cases and horse races.

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