Monday, December 13, 2010

What next?

Where do we go from here with Virginia v. Sebelius. That is not altogether clear at this point. Here are the complications:

* The Judge Moon of the Western District of Virginia ruled last Tuesday in Liberty University v. Geithner that the minimum coverage requirement was constitutional, and the plaintiffs have already filed their notice of appeal. Thus, there are now two cases on their way to the Fourth Circuit. The court could consolidate them, or perhaps schedule them simultaneously. There is an important difference between the cases, though, that warrants notice: the plaintiffs in Liberty University include at least one private individual. And this means that they may have a better ground for Article III standing to challenge the individual mandate. This means there may be reasons to keep the cases separate, even if the merits question is identical. Regardless, the parties and the Fourth Circuit will have to work this out.

* Virginia Attorney General Kenneth Cuccinelli has made noises publicly about taking this case directly to the Supreme Court, bypassing the Fourth Circuit. He has indicated that his office has "had discussions" with DOJ attorneys about the matter. But (1) it is unclear what these "discussions" have actually entailed, or what enthusiasm the administration has expressed for such an idea; (2) it is unclear why it would be in the administration's interest to get to the Supreme Court sooner rather than later--it would seem that, the longer the country lives with health care reform, and the more other parts of the ACA are implemented, perhaps the better the case for its constitutionality; and (3) it would now seem to be up to the United States, and not Virginia, to seek such an expedited review from the Supreme Court; and (4) it is unclear why the justices would actually be interested in taking the procedurally extraordinary (but not unprecedented) step of hearing the appeal directly from the district court, as it would only add fuel to the accusations (merited or otherwise) of "conservative judicial activism."

So we need to wait and see for a little while as to what exactly is next.