Virginia’s Attorney General Kenneth Cuccinelli announced today that he intends to appeal the district court’s decision in Commonwealth of Virginia, ex rel. Kenneth T. Cuccinelli II v. Sebelius, which found parts of the Patient Protection and Affordable Care Act (“PPACA”) unconstitutional but left the remainder of the PPACA intact, directly to the U.S. Supreme Court.
On December 16, 2010, Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia issued an opinion in Sebelius which struck down the portion of the PPACA requiring individuals to purchase health insurance as an unconstitutional extension of federal power. The appeal of that decision is currently pending before the Court of Appeals for the Fourth Circuit, but Cuccinelli intends to take advantage of Supreme Court Rule of Procedure 11, which permits direct appeal to the Supreme Court before an appellate court has ruled on a case “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 [the] Court.”
Cuccinelli has said that a direct appeal is justified in this case because the PPACA has an immediate impact on the resources of state governments and private businesses as they prepare to implement the law. The U.S. Department of Justice, however, has declined to join Cuccinelli in his direct appeal.
If the Supreme Court grants review of the Sebelius case, it would resolve a lower court split between that decision and a U.S. District Court for the Western District of Virginia case, Liberty University, Inc. v. Geithner, which upheld the constitutionality of the PPACA.