Cuccinelli says Virginia law prevents health insurance mandate

John O'Brien Mar. 24, 2010, 2:53pm


RICHMOND, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli says he is in a unique position to challenge recently passed federal health care reform legislation.

Cuccinelli did not join in a federal lawsuit filed Tuesday by 13 state attorneys general after President Barack Obama, but instead elected to file a suit of his own. He says Virginia law prevents the federal government from being able to require Virginians purchase health insurance.

"The health care reform bill, with its insurance mandate, creates a conflict of laws between the federal government and Virginia. Normally, such conflicts are decided in favor of the federal government, but because we believe the federal law is unconstitutional, Virginia's law should prevail," Cuccinelli said.

"Just being alive is not interstate commerce. If it were, there would be no limit to the U.S. Constitution's commerce clause and to Congress's authority to regulate everything we do.

"There has never been a point in our history where the federal government has been given the authority to require citizens to buy goods or services."

The bill contains a mandate for individuals to have health insurance coverage or face an annual penalty of $695.

Businesses with more than 50 workers would have to provide coverage or pay a $2,000-a-worker penalty if any of their employees get government-subsidized plans on their own.

"With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce," Cuccinelli said.

"We contend that if a person decides not to buy health insurance, that person - by definition - is not engaging in commerce, and therefore, is not subject to a federal mandate."

Cuccinelli's seven-page complaint is 16 pages shorter than the one filed by his colleagues in Florida federal court.

The statute he argues protects Virginians from being forced to purchase health insurance reads:

"No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where in an individual is named a party in a judicial or administrative proceeding.

"No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee or fine as a result of his failure to procure or obtain health insurance coverage. This section shall not apply to individuals voluntarily applying for coverage under a state-administered program pursuant to Title XIX or Title XXI of the Social Security Act.

"This section shall not apply to students being required by an institution of higher education to obtain and maintain health insurance as a condition of enrollment. Nothing herein shall impair the rights of persons to privately contract for health insurance for family members or former family members."

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