Wednesday, February 9, 2011
Virginia AG Kenneth Cuccinelli yesterday filed a Petition for a Writ of Certiorari Before Judgment in the Supreme Court, seeking review of Judge Hudon's (E.D. Va.) ruling in Virginia v. Sebelius in December, holding the individual health insurance mandate in the Patient Protection and Affordable Care Act unconstitutional.
AG Cuccinelli filed pursuant to Supreme Court Rule 11, which allows a petition for writ of cert. in extraordinary cases:
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.
Here are AG Cuccinelli's questions presented:
1. Whether the district court erred in holding that the Commonwealth has standing to challenge the minimum coverage provision (as stated by the Secretary).
2. Whether the district court erred in holding that the minimum coverage provision is not a valid exercise of Congress's Article I powers (as stated by the Secretary).
3. Whether the district court erred when it held that the unconstitutional mandate and penalty of the Patient Protection and Affordable Care Act of 2010 . . . is severable from all the remaining provisions of the law.
4. Whether the district court erred when it denied injunctive relief.
The Justice Department has indicated that it opposes bypassing the appeals courts. (Twenty-eight governors sent a letter to President Obama today asking him to support an expedited appeal to the Supreme Court.)