Cuccinelli Defends Suit Against Federal Healthcare Law

By Stephen Groves, of Virginia Statehouse News Tuesday, July 06, 2010

Virginia Attorney General Ken Cuccinelli last week fought to keep alive his lawsuit against the federal government for requiring people to buy health insurance as part of the new federal health care reform.

Cuccinelli’s attorneys argued against the federal government’s motion to dismiss the lawsuit last Thursday before U.S. District Court Judge Henry E. Hudson in Richmond. The judge said he would make his decision within 30 days. If the case is not dismissed, Hudson will hear the case on Oct. 18.

Cuccinelli is suing the federal government on behalf of Virginia over the federal mandate that everyone must buy health insurance — either private, employee-sponsored, or as part of the federal health care reform – by 2014 or pay a penalty. The year 2010 is the target date for full implementation of the new federal law. He says it is a violation of the Commerce Clause of the Constitution because it forces Americans to purchase a product.

The Commerce Clause states that Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

But Cuccinelli says Congress is overstepping its bounds.

“Congress will have been granted a virtually unlimited power to order you to buy anything,” said Cuccinelli in a press conference after the hearing.

He invoked the image of Patrick Henry and the fight for a limited government.

“This case is not about health care, it is about defending liberty,” he said.

His team argued before the judge that the Commerce Clause has always been used to “regulate activity, not inactivity.” The federal government said that the Commerce Clause gives the government the power to mandate the purchase of insurance or face a penalty. The definition of the word “activity” became an important point in the hearing, said Cuccinelli.

The case is a key battle in the argument over the legitimacy of the new health care reform. Currently, 20 other states are suing the federal government in a similar case in Florida. Cuccinelli decided to file a separate lawsuit because a current Virginia law stands in direct conflict with the health care law.

In defiance of the Health Care Act, the Virginia General Assembly recently passed a law stating that Virginians are not required to buy health insurance. The act received support from members of both parties in the statehouse.

Cuccinelli filed his lawsuit March 23, the same day the Health Care Bill was signed into law, to defend the Virginia law that stops the individual health insurance mandate, which was signed into law the next day, March 24. The federal government responded by moving to have the lawsuit dismissed on the grounds that Virginia has no legal standing to sue.

Lawyers for the federal government argued that because Virginia has not been injured by the law they cannot sue. They also argued the case is not “ripe” because the law will not take effect for several years.

Cuccinelli’s team responded that their lawsuit is valid because Virginia’s sovereignty has been injured, and that there is judicial precedent to allow a lawsuit to be tried when a dispute is certain to occur in the future.

Another point of contention within the courtroom was whether the individual health insurance mandate was a tax or penalty. Cuccinelli said at one point the judge asked whether the health care legislation was a tax bill or a health care bill. The lawyers for the federal government responded that it is both.

Whichever side loses will likely appeal before the 4th U.S. Circuit Court of Appeals. The Supreme Court is expected to ultimately decide the case.