On September 30, 2011, the Commonwealth of Virginia filed a petition in the United States Supreme Court seeking review of the September 8, 2011, ruling by the U.S. Court of Appeals for the Fourth Circuit that Virginia lacked standing to challenge the individual mandate provisions of the Patient Protection and Affordable Care Act (PPACA), despite Virginia’s argument that the mandate conflicted with state law.  See Commonwealth of Virginia ex. rel. Kenneth T. Cuccinelli, II v. Sebelius, No. 11-1057, 2011 WL 3925617 (4th Cir. Sep. 8, 2011).

The Fourth Circuit ruled that Virginia lacked standing because “the sole provision challenged—the individual mandate—imposes no obligations on the sole plaintiff, Virginia.” Id. at * 1.  In reaching this decision, the court rejected Virginia’s argument that the Virginia Health Care Freedom Act, which states that “[n]o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage,” Va. Code § 38.2-3430.1:1, created a conflict with state law sufficient to create federal standing.  The panel explained that “[u]nder Virginia’s standing theory, a state could acquire standing to challenge any federal law merely by enacting a statute . . . purporting to prohibit the application of the federal law.”  Commonwealth of Virginia, 2011 WL 3925617 at *6.

This most recent petition to the Supreme Court regarding the constitutionality of PPACA joins others arising out of the Sixth and Eleventh Circuit U.S. Court of Appeals.  On July 26, 2011, The Thomas More Law Center, a public interest law group, filed a petition seeking review of the Sixth Circuit’s 2-1 ruling that the individual mandate of PPACA is a constitutional exercise of congressional authority.  The Department of Justice filed a petition on September 28, 2011, challenging the August 12, 2011, ruling by the Eleventh Circuit declaring the individual mandate unconstitutional.  A decision by the Supreme Court is expected by June 2012.

A copy of the Virginia petition is available by clicking here.