The Commonwealth of Virginia has officially asked the U.S. Supreme Court to step into the legal battle over the Obama health law, even though the case is still in lower courts.
In a petition filed today at the High Court, Virginia's Attorney General argues that the case is "of imperative national importance requiring immediate determination in this Court."
You can read the Virginia submission below:
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No. _________
================================================================
In The
Supreme Court of the United States
---------------------------------♦---------------------------------
COMMONWEALTH OF VIRGINIA, ex rel. Kenneth T. Cuccinelli, II, in his Official Capacity as Attorney General of Virginia,
Petitioner,
v.
KATHLEEN SEBELIUS, Secretary of the Department of Health and Human Services, in her Official Capacity,
Respondent.
---------------------------------♦---------------------------------
On Petition For A Writ Of Certiorari Before Judgment To The United States Court Of Appeals For The Fourth Circuit
---------------------------------♦---------------------------------
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
---------------------------------♦---------------------------------
K
ENNETH
T. C
UCCINELLI
, II C
HARLES
E. J
AMES
,J
R
. Attorney General of Virginia Chief Deputy Attorney General
E. D
Virginia Deputy Attorney General dgetchell@oag.state.va.us
wrussell@oag.state.va.us
Counsel of Record
O
FFICE OF THE
S
TEPHEN
R. M
C
C
ULLOUGH
A
TTORNEY
G
ENERAL
Senior Appellate Counsel 900 East Main Street smccullough@oag.state.va.us Richmond, Virginia 23219
Counsel for the February 8, 2011 Commonwealth of Virginia
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
[if !supportLists] 1 [endif]Whether
the district court erred in holding that the Commonwealth has standing to
challenge the minimum coverage provision (as stated by the Secretary).
[if !supportLists] 2 [endif]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).
[if !supportLists] 3 [endif]Whether
the district court erred when it held that the unconstitutional mandate and
penalty of the Patient
Protection and Affordable Care Act of 2010, P.L. 111-148, 124 Stat. 119
(2010), as amended by the Health Care and Education Reconciliation Act of 2010 , P.L.
111-152, 124 Stat. 1029 (2010), is severable from all the remaining provisions
of the law.
[if !supportLists] 4 [endif]Whether
the district court erred when it denied injunctive relief.
CORPORATE DISCLOSURE STATEMENT
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................ i CORPORATE DISCLOSURE STATEMENT ....... ii TABLE OF AUTHORITIES ................................. vii OPINION BELOW ............................................... 1 JURISDICTION ................................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS ................................................... 2 STATEMENT OF THE CASE.............................. 2 REASONS FOR GRANTING THE PETITION ....
TABLE OF CONTENTS - Continued
Page
INDEX TO APPENDIX
Commonwealth of Virginia v. Kathleen Sebelius
Page
TABLE OF CONTENTS - Continued
TABLE OF AUTHORITIES
Page
C ASES
Alaska Airlines, Inc. v. Brock
........................................... 10, 22
Alaska v. U.S. Dept. of Transp.
1989) .................................... 7
Alfred L. Snapp & Sons v. Puerto Rico ex rel. Barez
458 U.S. 592 (1982) ................................................... 7
Carter v. Carter Coal Co.
, 298 U.S. 238 (1936) ........................................... 17, 18
Child Labor Tax Case
, 259 U.S. 20 (1922) ............................................... 9, 19
Commonwealth of Virginia, ex rel. Cuccinelli v. Sebelius
702 F. Supp. 2d 598 (E.D. Va. 2010) ................... 1, 10
Dep't of Rev. of Mont. v. Kurth Ranch
................................................... 9
Diamond v. Charles
, 476 U.S. 54 (1986) ..................................................... 7
Florida v. United States Dep't of Health and Human Servs.
285683, No. 3:10cv91
Gonzales v. Raich
, 545 U.S. 1 (2005) ....................................................... 6
Gratz v. Bollinger
, 539 U.S. 244 (2003) ........................................... 17, 18
TABLE OF AUTHORITIES--Continued
Page
In re: Leckie Smokeless Coal Co. v. United Mine Workers of America
....................................... 8
Liberty University v. Geithner
Maine v. Taylor
, 477 U.S. 131 (1986) ................................................... 7
Mistretta v. United States
, 488 U.S. 361 (1989) ........................................... 16, 19
New Haven Inclusion Cases
, 399 U.S. 392 (1970) ........................................... 16, 18
New York v. United States
, 505 U.S. 144 (1992) ................................................... 7
Ohio v. USDOT
, 766 F.2d 228 (6th Cir. 1985) ..................................... 7
Porter v. Dicken
, 328 U.S. 252 (1946) ................................................. 17
Printz v. United States
, 521 U.S. 898 (1997) ................................................... 7
Railroad Retirement Board v. Alton R. Co.
........................................... 17, 18
Regional Rail Reorganization Act Cases
419 U.S. 102 (1974) ................................................... 8
Rodriguez de Quijas v. Shearson
................................................. 19
TABLE OF AUTHORITIES--Continued
Page
South Carolina v. Regan
, 465 U.S. 367 (1984) ................................................... 8
St. Louis, Kansas City & Col. R.R. Co. v. Wabash R.R. Co.
217 U.S. 247 (1910) ................................................. 17
State of Florida v. United States Department of Health and Human Services
(N.D. Fla. 2010) .................... 11
Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp.
130 S. Ct. 1758 (2010) ............................................... 8
Tex. Ofc. of Pub. Util. Counsel v. FCC
1999) ..................................... 7
Thomas More Law Center v. Obama
Mich. 2010) ....... 10, 17, 20
United States v. Bankers Trust Co.
................................................. 18
United States v. Butler
, 297 U.S. 1 (1936) ....................................................... 9
United States v. LaFranca
, 282 U.S. 568 (1931) ................................................... 9
United States v. Lopez
, 514 U.S. 549 (1995) ................................................... 6
United States v. Morrison
, 529 U.S. 598 (2000) ................................................... 6
United States v. Reorganized (F&I) Fabricators of Utah, Inc.
................................................... 9
Page
United States v. United Mine Workers
of America
Wickard v. Filburn
, 317 U.S. 111 (1942) ................................................... 6
Wyoming ex rel. Crank v. United States
2008) ................................. 7
Youngstown Sheet & Tube Co.
................................................. 18
C ONSTITUTIONAL P ROVISIONS
S
TATUTES
26 U.S.C. § 4980H(a) .................................................. 15 26 U.S.C. § 5000A ................................................... 3, 21 26 U.S.C. § 7421(a) ..................................... 8, 11, 12, 20 28 U.S.C. § 347(a) ....................................................... 20 28 U.S.C. § 1254(1) ................................................. 2, 20 28 U.S.C. § 2101(e) ....................................................... 2 28 U.S.C. § 2201 ........................................................... 8 28 U.S.C. § 2201(a) ....................................................... 8 28 U.S.C. § 2201(e) ....................................................... 2 29 U.S.C. § 218a ......................................................... 15 42 U.S.C. § 18001 ....................................................... 14
TABLE OF AUTHORITIES--Continued
Health Care and Education Reconciliation Act of 2010
Patient Protection and Affordable Care Act of 2010
P.L. 111-148, 124 Stat. 119 (2010) ... 2, 3, 4, 5, 6, 8, 10, 11, 12, 13, 14, 15, 16, 18, 22, 23 PPACA § 1501 ............................................................... 6
Code § 2.2-507
................................................ 5
Virginia Code
§ 2.2-513 ................................................ 5
...................................... 4
R
ULES
Sup. Ct. R. 11............................ 2, 12, 13, 16, 17, 18, 19
O
THER
A
UTHORITIES
Congressional Budget Office Memorandum,
The Budgetary Treatment of an Individual Mandate to Buy Health Insurance
1994 .............................................................. 4
TABLE OF AUTHORITIES--Continued
Requiring Individuals to Obtain Health
Insurance: A Constitutional Analysis
PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT
---------------------------------♦--------------------------------
OPINION BELOW
The opinion of the district court denying the Secretary's Motion to Dismiss is reported as
Sebelius, 702 F. Supp. 2d 598 (E.D.
Va. 2010). That decision and the Memorandum Opinion granting summary judgment
to Virginia are reprinted in the Appendix ("App.") at App. 1-53.
---------------------------------♦--------------------------------
JURISDICTION
The judgment of the district court was entered on December 13, 2010. Notices of appeal were timely filed within 60 days of judgment by the Secretary and by the Commonwealth of Virginia on January 18, 2011. The appeals were consolidated and docketed in the court of appeals on January 20, 2011 as
Kathleen Sebelius, No. 11-1057. Accordingly,
the jurisdiction of this Court is invoked under 28 U.S.C. §§ 1254(1) and
2101(e), and Rule 11 of this Court.
---------------------------------♦--------------------------------
CONSTITUTIONAL AND STATUTORY PROVISIONS
---------------------------------♦--------------------------------
STATEMENT OF THE CASE
1
Section 1501 is now codified at 26 U.S.C. § 5000A.
Meanwhile, at the 2010 Regular Session of the Virginia General Assembly, the Virginia Health Care Freedom Act,
Code § 38.2-3430.1:1, had been
enacted with the assent of the Governor. (App. at 116). That act provides in
pertinent part:
2
Jennifer Staman & Cynthia Brougher, Congressional Research Service,
Obtain Health Insurance: A Constitutional Analysis, July 24, 2009 at 3, 6. See also Congressional Budget
Office Memorandum, The Budgetary Treatment of
an Individual Mandate to Buy Health Insurance, August 1994 ("A mandate requiring all
individuals to purchase health insurance would be an unprecedented form of
federal action.").
The Attorney General of Virginia has the duty to defend the legislative enactments of the Commonwealth.
the President signed PPACA on March 23, 2010, the validity of both the Federal
and State enactments were drawn into question. If PPACA was supported by an
enumerated power, then it would prevail under the Supremacy Clause. If not, the
Health Care Freedom Act would be a valid exercise of the police powers reserved
to the States. In order to resolve this conflict, Virginia filed a Complaint in
the United States District Court for the Eastern District of Virginia for
Declaratory and Injunctive Relief. (App. at 54-55).
Virginia demonstrated below that since
Court has reached no further than to hold that Congress can regulate
(3) "
activities
that substantially affect interstate commerce."
549, 558-59 (1995) (emphasis added). Section 1501 of PPACA seeks to regulate inactivity affecting
interstate commerce, a claimed power well in excess of the affirmative outer
limits of the Commerce Clause heretofore recognized, even as executed by the
Necessary and Proper Clause. See Gonzales v. Raich , 545 U.S. 1 (2005). This claimed power also violates the
negative outer limits of the Commerce Clause identified in Lopez and in United
States v. Morrison, 529 U.S.
598 (2000). As was so clearly stated in Morrison : "We always have rejected readings of the Commerce Clause and the scope
of federal power that would permit Congress to exercise a police power." Morrison , 529 U.S.
at 618-19 (emphasis in original). See also Morrison , 529 U.S. at 663 (recognizing that heightened scrutiny might
be justified where Congress acted in haste without taking "a hard look" at
federalism issues or if it otherwise followed questionable procedures.)
(Breyer, J., dissenting).
With respect to standing, Virginia argued that states suffer a sovereign injury and have standing to claim that the national government is acting in excess of its enumerated powers whenever their code of laws is attacked or whenever they are otherwise commanded to give way.
e.g., Printz v. United States,
521 U.S. 898 (1997); New York v. United States , 505 U.S. 144, 155 (1992);
Maine v. Taylor , 477
U.S. 131, 137 (1986) ("a State clearly has a legitimate interest in the continued enforceability of its own statutes");
(1986) ("a State has standing to defend the constitutionality of its statute");
Alfred L. Snapp & Sons
v. Puerto Rico ex rel. Barez,
458 U.S. 592, 601 (1982) ("[T]he power to create and enforce a legal code, both
civil and criminal" is a core State function); Wyoming ex rel. Crank v.
United States, 539 F.3d 1236, 1242 (10th
Cir. 2008) (State has standing to defend the efficacy of its expungement
statute from pre-emption threatened by a federal agency's interpretation of
federal law); Tex. Ofc. of Pub. Util.
Counsel v. FCC, 183 F.3d 393, 449 (5th
Cir. 1999) (" 'States have a sovereign interest in the power to create and
enforce a legal code.' ") (citing Alfred
L. Snapp & Sons); Alaska v. U.S. Dept. of Transp. , 868 F.2d 441, 443-45
(D.C. Cir. 1989) ("pre-emptive effect [of federal regulations] is the injury"
sufficient to confer Article III standing); Ohio v. USDOT , 766 F.2d
With regard to the Anti-Injunction Act, 26 U.S.C. § 7421(a), and its parallel tax provisions in the Declaratory Judgment Act, 28 U.S.C. § 2201(a), Virginia noted that these statutes establish a "pay and sue" rule whereby assessed taxes must be paid before being challenged. Virginia argued that this Court has made it clear that the Anti-Injunction Act does not apply to non-taxpayer States.
proposition necessitates the conclusion that there is similarly no bar under
the Declaratory Judgment Act, 28 U.S.C. § 2201. In re: Leckie Smokeless
Coal Co. v. United Mine Workers of America, 99 F.3d 573, 583-84 (4th Cir. 1996) (on this
proposition, the acts are coextensive).
Virginia further argued that considerations of ripeness are no bar because the collision between PPACA and the Virginia enactment are patent. "Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect."
AnimalFeeds Int'l Corp.,
130 S. Ct. 1758, 1767 n.2 (2010), quoting Regional Rail Reorganization Act Cases , 419 U.S. 102, 143 (1974).
On the tax issue, the threshold problem for the Secretary is that there is a justiciable difference between a tax and a penalty.
" 'A tax is an enforced contribution to provide for the support of government;
a penalty . . . is an exaction imposed by statute as punishment for an unlawful
act.' " United States v.
Reorganized (F&I) Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996)
(citation omitted). A penalty not supporting a tax is not a tax penalty but a
naked penalty requiring an enumerated power other than the taxing power to
support it. Furthermore, even if the penalty were a tax "there comes a time in
the extension of the penalizing features of the so-called tax when it loses its
character as such and becomes a mere penalty with the characteristics of a
regulation and punishment." Dep't
of Rev. of Mont. v. Kurth Ranch,
511 U.S. 767, 779 (1994). See
also United States v. Butler,
297 U.S. 1, 68 (1936); Child
Labor Tax Case, 259 U.S. 20, 38 (1922).
Because at this point the penalty requires a supporting enumerated power
independent of the taxing power--and the only possible one would be the Commerce
Clause--the tax argument collapses back into the Commerce Clause argument.
Based upon these authorities and considerations the district court denied the motion to dismiss on August 2, 2010.
Sebelius, 702 F. Supp. 2d 598 (E.D.
Va. 2010). (App. at 89).
On August 16, 2010, the Secretary filed her Answer. (App. at 207). On September 3, 2010 the parties filed cross-motions for summary judgment. (App. at 2). They were supported or opposed in twelve briefs amicus curiae, including briefs filed on behalf of former Attorneys General Barr, Meese, and Thornburgh, and in briefs filed on behalf of eighteen law professors. (App. at 209-22). On the threshold and merits issues, Virginia argued in conformity with its positions at the motion to dismiss stage. With respect to remedy, Virginia argued that under the legislative bargain prong of
Airlines, Inc. v. Brock,
480 U.S. 678 (1987), the mandate and penalty, if unconstitutional, are not
severable from the remainder of PPACA. On the second prong of Alaska Airlines , which turns on the
ability of remaining provisions to function without the stricken parts, the
Secretary conceded that changes in insurance regulation, such as guaranteed
issue and community rating, were not severable from the mandate and penalty.
(App. at 148-49, 151). Indeed, the Secretary asserted that the changes in
insurance would collapse that industry without the mandate and penalty. (App.
at 148-49). Virginia argued in the alternative that at least all means of
financing the PPACA scheme, including Medicare and Medicaid changes, had been
intended to work together and could not be severed from the mandate and
penalty. (App. at 46).
On October 7, 2010, the United States District Court for the Eastern District of Michigan in
Obama, 720 F. Supp. 2d 882 (E.D.
Mich. 2010), found that the private party plaintiffs that were before it had
standing, found that their claims were ripe, found that the penalty was not a
tax triggering the Anti-Injunction Act and ruled that PPACA is a constitutional
exercise of power under the Commerce Clause. The Secretary filed her Notice of
Supplemental Authority on October 8, 2010 bringing that decision to the
attention of the district court in the Eastern District of Virginia. (App. at
221).
On October 14, 2010, the United States District Court for the Northern District of Florida in
States Department of Health and Human Services, 716 F. Supp. 2d 1120
(N.D. Fla. 2010), denied the motion to dismiss filed by the United States. In
the course of its decision that court held that PPACA could not be sustained
under the taxing power. Id. at 1139-40. Virginia filed
its Notice of Supplemental Authority the same day bringing that decision to the
attention of the district court. (App. at 223).
On November 30, 2010, the United State District Court for the Western District of Virginia in
Geithner, 2010 WL 4860299, No.
6:10cv15 (W.D. Va. Nov. 30, 2011), found that the claims of Liberty University
and two individuals conferred standing upon them and were ripe for
adjudication. The mandate and penalty were found not to trigger the
Anti-Injunction Act and PPACA was upheld as a constitutional exercise of
Congressional Commerce Clause power. The Secretary filed her Notice of Supplemental
Authority on December 3, 2010 bringing this decision to the attention of the
district court. (App. at 225).
On January 26, 2011, the Secretary and Virginia filed a Joint Motion to Expedite Briefing and to Schedule Oral Argument for May 2011. (Case 11-1057 Doc. 13). The Motion was Granted the same day, (Case 11-1057 Doc. 15), and oral argument is tentatively scheduled for the May 10-13 session, to be conducted
24).
On January 28, 2011, the Secretary filed her non-binding Statement of Issues on appeal. (Case 11-1057 Doc. 17 at 3). That statement is repeated
as Questions Presented No. 1 and No. 2.
---------------------------------♦--------------------------------
REASONS FOR GRANTING THE PETITION
A. This Case Is of Imperative National Importance Requiring Immediate Determination in this Court.
Despite these developments, the States, citizens and the economy remain mired in uncertainty. Because the changes effected by PPACA are so massive, the States are forced to devote considerable resources now to meet the requirements of a congressional enactment that this Court may find invalid. In Virginia, some of the key agencies involved with PPACA include the Office of the Secretary of Health and Human Resources, the Department of Medical Assistance Services, the Department of Health, the Bureau of Insurance, and the state medical teaching hospitals. Virginia must assess whether to develop a high risk pool or default to the federal government, overhaul its insurance laws, and create a health benefit exchange.
risk pools); 18031 (health benefit exchanges). The latter entails the
administrative costs associated with creating an entirely new agency, expanding
an existing agency, or providing support for an independent entity. The General
Assembly of Virginia is presently considering complex bills on a variety of
PPACA-related issues. 3 All 50 states
3
See
House Bills 1928, 1958, (both overhauling various aspects of Virginia insurance law in light of PPACA); 2434 (creating a Health Benefit Exchange), and Senate Bill 1366 (same). Information about these bills is available at the General Assembly's website, http://leg1.state.va.us/lis.htm
4
26 U.S.C. § 4980H(a).
5
U.S.C. §§ 18021, 18022.
There is a palpable consensus in this country that the question of PPACA's constitutionality must be and will be decided in this Court. Under these circumstances, the issues presented here should be considered to be at least as important as those presented in many of the cases where immediate review has been permitted under Rule 11 or its predecessors. Such cases include challenges to the legality of the Federal Sentencing Guidelines,
reorganization of two railroads, New
Haven Inclusion Cases, 399 U.S. 392, 418 (1970),
a coal strike, United States v. United
Mine Workers of America,
330 U.S.
8
http://www.hhs.gov/ociio/regulations/approved_applications_ for_waiver.html (noting that 711 waivers that must be renewed annually were issued for FY 2011).
258, 269 (1947), a denial of the power of a federal court to enforce rent control,
U.S. 252 (1946), a constitutional challenge to the Bituminous Coal Conservation Act,
constitutional challenge to the Railroad Retirement Act, Railroad Retirement Board
v. Alton R. Co., 295 U.S. 330, 340 (1935),
and the effect of a railroad dispute on the economy of St. Louis, Missouri. St. Louis, Kansas City
& Col. R.R. Co. v. Wabash R.R. Co.,
217 U.S. 247, 250-51 (1910).
Rule 11 also has been employed to enable this Court to gather a number of cases so as to permit it to make a constitutional assessment in a wider range of circumstances.
(2003). It should be so employed here. In both Thomas More Law Center and in the Liberty University cases, the Department of
Justice failed to independently cross appeal standing. Because that issue is
jurisdictional, it is not waivable and may be asserted by a party at anytime or
by this Court sua sponte . As a consequence, it
cannot be known prior to decision whether those cases provide a good vehicle
for reaching the constitutional merits. Sovereign standing, on the other hand,
is more categorically established than is individual standing, which in any
specific case turns on the particular facts of that case. Granting certiorari
in this case will ensure a good vehicle for merits review. Granting certiorari
in this case and then expanding it to reach all merits decisions pending in the
courts of appeal would serve the aggregation interest recognized in Gratz , 539 U.S. at 259-60.
B. The Imperative Public Importance of the Constitutionality of PPACA and the Proper Scope of Severance Justify Deviation from Normal Appellate Practice.
The paradigm cases for the grant of Rule 11 review are challenges to federal power involving significant national economic impact.
Inclusion Cases, 399 U.S. 392; Youngstown Sheet & Tube
Co., 343 U.S. 579, 584-85
(1952); United Mine Workers of Am. , 330 U.S. 258; Carter Coal Co. , 298 U.S. 238; Alton R. Co. , 295 U.S. 330; United States v. Bankers
Trust Co., 294 U.S. 240, 243 (1935).
The pending case shares both aspects of those cases: constitutional questions
and significant national economic effect. Furthermore, the presence of pure
issues of constitutional law on the merits ensures that normal appellate
practice will not further focus the controlling issues, which, in any event,
are bottomed on decisions of this Court. Indeed, because the constitutionality
of PPACA can only be resolved by determining whether and to what extent this
Court will enlarge the existing affirmative and negative outer limits of the
Commerce Clause, or overrule the Child
Labor Tax Case, it is not clear to what
extent the courts of appeal are even entitled to engage in independent legal
development in the face of binding precedent from this Court. See Rodriguez de Quijas v.
Shearson/ American Express , 490 U.S. 477, 484 (1989)
(this Court has the exclusive prerogative to reverse its own cases). 9
C. This Case Is "Cert. Worthy" In its Own Right and Is a Good Vehicle for Resolving Constitutional Issues Which Have Been Variously Decided Around the Country and Which Can Only Be Finally Decided in this Court.
This Court has deemed a split among district courts in different circuits as a factor weighing in favor of granting certiorari under Rule 11.
v. United States, 488 U.S. 361, 371 (1989).
Such a split
9
The district courts in Virginia and Florida expressly recognized this point.
Court's cases to reject the argument that the "penalty" is a tax, while
recognizing that the line of cases has been criticized by some scholars); Florida v. United States
Dep't of Health and Human Servs.,
2011 WL 285683, No. 3:10cv91, slip op. 43 (N.D. Fla. Jan. 31, 2011) ("existing
case law thus extends only to those 'activities' that have a substantial
relationship to, or substantially affect, interstate commerce. I am required to
interpret this law as the Supreme Court presently defines it. Only the Supreme
Court can redefine or expand it further.").
exists here and has merely been deepened by the Florida decision.
States Dep't of Health and Human Servs.,
2011 WL 285683.
This case is a particularly good vehicle for resolving the split because all of the issues raised by the Department of Justice--standing, the Anti-Injunction Act, ripeness, and the limits of the Commerce Clause and of the Taxing Power--have been raised here where they have been exhaustively developed. Although it appears from the non-binding Statement of Issues in the Secretary's Docketing Statement that she does not intend to appeal the Anti-Injunction Act or ripeness, she is pursuing standing. Because the Secretary has not appealed standing in the
reliable vehicles by themselves for assuring merits review because standing is
a jurisdictional issue that could be re-raised or raised sua sponte. Granting certiorari in
this case will ensure that the issue will arrive fully briefed in this court.
The fact that Virginia was the prevailing party below is no barrier to a grant of certiorari. 28 U.S.C. § 1254(1) provides that "any party to any civil or criminal case" may petition for certiorari from "[c]ases in the courts of appeals" both "before and after rendition of judgment or decree."
Workers of America, 330 U.S. at 269 (former
28 U.S.C. § 347(a), now 28 U.S.C. § 1254(1), "authorizes a petition for
certiorari by any party and the granting of certiorari prior to judgment in the
Circuit Court of Appeals."). Furthermore, Virginia's claim of error with
respect to severance is derivative of and closely connected with the Secretary's
appellate issues.
However, the Secretary's concession should have been the beginning of the severance review and not the end. Because all financing provisions, including Medicare and Medicaid changes, were intended to operate together, they should all fall together as well. Indeed, under the legislative bargain prong of
should have been stricken in its entirety because it is as certain as such a
thing ever could be that PPACA would not have passed at all without the
unconstitutional mandate and penalty.
---------------------------------♦--------------------------------
CONCLUSION
For the foregoing reasons the petition for writ of certiorari before judgment in the court of appeals should be
include all PPACA litigation pending in the courts of appeals.
K
ENNETH
T. C
UCCINELLI
, II C
HARLES
E. J
AMES
,J
R
. Attorney General of Virginia Chief Deputy Attorney General
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