Va. AG's health care challenge will move on

John O'Brien Aug. 4, 2010, 1:26pm


RICHMOND, Va. (Legal Newsline) - A federal judge has decided Virginia Attorney General Ken Cuccinelli can sue the federal government over health care reform.

U.S. District Judge Henry Hudson issued his ruling Monday, denying the federal government's motion to dismiss and allowing Cuccinelli's challenge of the health care package's individual mandate to proceed. Cuccinelli says the mandate is in contrast to Virginia law.

The mandate requires Americans to purchase health insurance or face a $695 annual penalty.

"While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate -- and tax -- a citizen's decision not to participate in interstate commerce," Hudson's ruling says.

Hudson added that neither the U.S. Supreme Court nor a federal appellate court has addressed that issue.

"No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce," Hudson wrote.

"Given the presence of some authority arguably supporting the theory underlying each side's position, this court cannot conclude at this state that the complaint fails to state a cause of action."

Cuccinelli says a state law passed prior to the federal health care reform's passage in March prevents Virginians from being forced to purchase health insurance.

"In the view of (Department of Health and Human Services Secretary Kathleen Sebelius), federalism is so withered and near death that States lack the power and right to go to federal court to test the validity of their own enactments when they conflict with federal law," the response to the motion to dismiss says.

Oral arguments were held July 1.

Cuccinelli filed his lawsuit soon after President Barack Obama signed the legislation into law in March. It is separate from a 20-state suit filed in Florida federal court that claims the mandate is unconstitutional and has no state law issues.

From Legal Newsline: Reach John O'Brien by e-mail at

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