Virginia Petitions High Court Over Dismissal Of Challenge To Health Care Act

 WASHINGTON, D.C. - (Mealey's) The Commonwealth of Virginia on Sept. 30 filed a petition for writ of certiorari with the U.S. Supreme Court, saying that the Fourth Circuit U.S. Court of Appeals erred in finding that Virginia lacked standing to challenge the Patient Protection and Affordable Care Act (PPACA) (Commonwealth of Virginia v. Kathleen Sebelius, No. N/A, U.S. Sup.). 

A Fourth Circuit panel on Sept. 8 reversed a U.S. District Court for the Eastern District of Virginia decision that by enacting the individual mandate provision contained in the PPACA, Congress exceeded the powers granted to it under the Constitution.  The provision was severed from the rest of the act.  The parties separately appealed the ruling to the Fourth Circuit.   

In the case, Virginia Attorney General Kenneth T. Cuccinelli sued Health and Human Services Secretary Kathleen Sebelius, in her official capacity, alleging that the PPACA conflicts with Virginia Code Section 38.2-3430.1:1 and that a main provision of the PPACA requiring that most Americans without insurance obtain coverage or face a penalty is unconstitutional. 

In the petition, Cuccinelli says that the Fourth Circuit became the first circuit to deny that a state has standing to defend its own code of laws and opened a split in the circuit courts when it construed the Virginia Health Care Freedom Act (VHCFA) to be merely symbolic and, therefore, not a real law capable of giving rise to sovereign injury. 

The court should grant the petition to address the split because the Fourth Circuit's ruling "misapprehends the foundational and continuing role of the federal courts as arbiters of competing claims of state and federal power," Cuccinelli says. 

Virginia says it demonstrated that it has Article III standing, but that does not end the standing discussion because the Fourth Circuit's decision also placed limits on sovereign standing.  Contrary to the Fourth Circuit's finding, the case is not a parens patriae case because the interest in the case is that of the General Assembly and the governor in enacting the VHCFA, and no citizen has the right or power to address such a claim, Cuccinelli says. 

Virginia did not assert an injury tied to the rights and benefits of individuals but rather "seeks to defend its sovereign power to regulate the persons and entities within its boundaries with respect to the power to mandate the purchase of health insurance," Cuccinelli says. 

Contrary to the Fourth Circuit's reasoning, the VHCFA does more than immunize Virginia's citizens from state law, Cuccinelli says.  The VHCFA was passed prior to the PPACA and prohibits every nonexempted person and entity within the state from requiring insurance as a condition of employment or conditioning any other benefit on an insured status, and that prohibition would have been - and is - enforceable by private suit or by the attorney general by way of injunction, Cuccinelli says. 

Additionally, certiorari should be granted because federal courts are fractured on the constitutionality of the PPACA, Cuccinelli says.  Two others cases in which petitions for certiorari have been filed rest upon individual standing, while this case presents the most developed claim of state sovereign standing, Cuccinelli says. 

[Editor's Note:  Full coverage will be in the Oct. 5 issue of Mealey's Managed Care Liability Report.  In the meantime, the petition is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #31-111005-017B.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.] 

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