Obama Go-Slow Approach at Supreme Court on Health Law May Build Support

February 4, 2011

By Greg Stohr and Justin Blum, Bloomberg

A U.S. Supreme Court showdown over President Barack Obama’s health-care overhaul may be inevitable. His administration is in no rush for the court to get involved.

The Justice Department yesterday said it will oppose Virginia Attorney General Ken Cuccinelli’s request that the court immediately review the law, which a federal trial judge said was unconstitutional. The administration said the high court should follow its usual practice and first let an appeals court rule on Cuccinelli’s challenge.

The government’s approach would give it a chance to rack up lower court victories and perhaps build popular support for the law before the justices take up the case. It might also set the stage for a Supreme Court ruling only months before the 2012 presidential election.

“Litigating through the courts of appeals in the normal course suggests confidence in the government’s case,” said Christopher J. Wright, a lawyer with Wiltshire & Grannis LLP in Washington who has argued 28 Supreme Court cases and isn’t involved in the health-care fight. “In this particular case, it may produce unanimous judgments from appeals courts upholding the law.”

Cuccinelli said in an interview that states and businesses need to know whether the law is constitutional as soon as possible in light of rulings in Virginia and Florida against the administration.

“What really matters now is getting this decided for the people of this country so we can move on both with health care reform and just economically knowing how we’re going to have to operate,” he said.

Unusual Step

The Supreme Court has taken the step being sought by Cuccinelli, known as certiorari before judgment, only a handful of times in the past half century and generally only when the justices are simultaneously considering a related case that has cleared the appellate level.

The chances of the court agreeing to hear the case in the face of government opposition are “zero,” said Carter Phillips, a lawyer in Washington at Sidley Austin LLP who has argued more than 60 Supreme Court cases.

To read, more, visit: http://www.bloomberg.com/news/2011-02-04/obama-s-go-slow-approach-at-supreme-court-on-health-law-may-build-support.html

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