We’re very fortunate in Virginia to have an exceptionally bright and talented Attorney General.  Last month Ken Cuccinelli filed a brief with the Supreme Court stating that there is a “palpable consensus” that the high court would have to ultimately pass judgment on Obamacare and delaying action until the completion of the appellate process was not in the interest of the American public.

The Obama administration argued to the Supreme Court on Monday that it should not consider the 2010 health care law until after the appellate courts had reviewed the case.  Why?  It would seem to make sense for the administration to put this matter behind them, unless they don’t want it resolved till after the 2012 election.

Solicitor General Neal Katyal in his argument to the court said, “there is no basis for short-circuiting the normal course of appellate review.” He went on to say that Virginia Attorney General Ken Cuccinelli’s case is problematic because he may lack sufficient standing to challenge the health care law.

The Supreme Court usually only reviews cases after they’ve been considered by appellate judges, however Cuccinelli says that’s not appropriate in this instance.  Many states and companies are already expending money in preparation for full implementation of Obamacare.  Cuccinelli argues that his case involves “pure issues of constitutional law” that appellate judges will be unable to definitively resolve.

The Acting Solicitor General admits that there is no question that the case is of great public importance but uses the language of the court’s own rules to say it is not “one of the rare cases that justifies deviation from normal appellate practice and require[s] immediate determination in this court.” He points out that the Virginia case and several others are already in the pipeline and little time may be saved if the court were to jump in now.  A complete overhaul of the health care system isn’t one of the rare cases that warrants immediate action by the Supreme Court?

There is almost universal agreement by politicians that putting the matter before the court is the only way resolve the matter.  Both Democrat and Republican politicians have expressed support for immediate high court review. Florida Democrat Bill Nelson has been very vocal on the need for the Supreme Court to expedite the process.  Republican governors recently sent a letter to the President asking him to support Virginia’s efforts, writing, “we should not endure years of litigation in the circuit courts, when the Supreme Court can promptly provide finality.”

Sadly, the consensus is that it is unlikely the justices will grant Cuccinelli’s request.  This means millions of additional dollars will be expended before we even know if Obamacare is constitutional.

U.S. District Court Judge Henry Hudson ruled that the health care law’s regulation forcing people to buy health insurance or face a penalty is unconstitutional. The government’s appeal before the Fourth Circuit is hoping to reverse Hudson’s ruling. Oral arguments are scheduled for May 10 in Richmond, VA.  While the Fourth Circuit was once one of the most conservative federal appellate courts, Obama has appointed four of the 15 judges in the past two years, likely moderating the court significantly.  However since only 3 judges hear any case, the actual mix won’t be known until the day of the arguments.  It’s effectively a judicial crap-shoot.

If there ever was a case that could only be concluded with a Supreme Court decision, this is it.  There is no other way businesses, state governments or insurance companies will be able to plot a course forward.  The longer this matter drags on, the more money will potentially be flushed down the toilet.  Fortunately Ken Cuccinelli has been very persuasive up to this point, so hopefully he’s struck the right chord with the high court and we’ll see this matter resolved before too many more tax dollars are wasted.

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