Cuccinelli talks about win in health care challenge

Jessica M. Karmasek Dec. 14, 2010, 1:34pm


RICHMOND, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli called a federal judge's decision to side with the state in its lawsuit challenging President Barack Obama's federal health care reform a win for residents and for the U.S. Constitution.

Cuccinelli shared his reaction in a five-minute video posted on his office's website following U.S. District Judge Henry Hudson's decision to grant the attorney general's motion for summary judgment.

The state argued that requiring individuals to purchase health insurance or face a monetary penalty violates Virginia's Healthcare Freedom Act.

Hudson, on Monday, ruled that including the mandate, which imposes a $695 annual penalty for individuals who do not purchase health insurance, exceeded Congress' power.

"A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchae a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme," Hudson wrote.

"The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invide unbridled exercise of federal police powers.

"At its core, this dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal health insurance coverage -- it's about an individual's right to choose to participate."

The federal judge also ruled that the annual penalty is not considered a tax, as argued by the federal government.

"Well, obviously we're glad to prevail in round one," Cuccinelli said in the video. "We fully recognize that we have a long way to go in this case."

The attorney general said he feels "pretty good" about where the state is at this stage in the case.

"Obviously, it's important to us that we rein in the incredible growth of federal power back within the boundaries of the Constitution. This ruling helps do that," he said.

Cuccinelli said the mandate -- if it had been upheld -- would have served as a precedent, allowing the government to order a person to buy such things as a car, asparagus or cauliflower, or to join a gym.

"We're very gratified in (the court's) decision," he said. "We are also very thankful that we have succeeded in protecting the Constitution and protecting Virginians."

Both Cuccinelli and Hudson have conceded that the ruling is just a preliminary step in the resolution of the case.

However, the attorney general said his office is currently talking to the Justice Department in hopes of "fast-tracking" the case to the U.S. Supreme Court.

"We know this constitutional question is going to be decided by the Supreme Court," he said.

If the case isn't "fast-tracked," Cuccinelli said it would take two years to get from this point to the end of the case -- "a long time," he said, for Virginia and its businesses not to know "the rules of the road."

Though Monday's ruling pleased him, Cuccinelli acknowledged others' unhappiness.

"I am very sympathetic to people who are concerned about the need for health care," he said. "I hope that our defeating this bill, in the sense of upholding the Constitution, will push both sides -- Republicans and Democrats -- back to the table."

Consumers, he said, not the federal government, should be in control of their own health care.

"For 45 years, every time we've perceived a problem in health care, the one solution out of Washington has always been the same -- more government, more government involvement, more government invasion, more government control -- and it has lead to price spikes and a lack of any incentive to control costs."

Colorado's Attorney General's Office also welcomed the ruling in the case.

"This ruling out of Virginia underlines what the attorney general has been saying from the very beginning, specifically the individual mandate included in the health care overhaul legislation has some serious constitutional flaws," Mike Saccone, a spokesman for Attorney General John Suthers, told a Denver television station.

Colorado is one of the 20 states that filed a separate lawsuit, currently pending in Florida, against the Obama administration. Oral arguments are set for Thursday. The subject of the suit is the mandate, which does not take effect until 2014.

If the mandate is found unconstitutional, it must be determined if it can be severed from the entire law or if the law will be invalidated. Hudson chose to sever the mandate and any directly dependent provisions.

"(Monday's ruling) underlines the validity of our complaints in our case in Florida so we were pleased to see that," Saccone said.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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