Fourth Circuit expedites Virginia's health care challenge

John O'Brien Jan. 27, 2011, 10:43am


RICHMOND, Va. (Legal Newsline) - A federal appeals court has sped up the so-far successful legal challenge of federal health care reform started by Virginia Attorney General Ken Cuccinelli.

Cuccinelli has noted that the issue will ultimately be decided by the U.S. Supreme Court, and the U.S. Court of Appeals for the Fourth Circuit decided Wednesday to expedite proceedings. His case is separate from a 26-state lawsuit challenging President Barack Obama's health care package.

On Dec. 13, U.S. District Judge Henry Hudson granted summary motion to Cuccinelli, ruling that a mandate that requires an individual to purchase health insurance or face a $695 yearly penalty is prohibited by Virginia law.

Oral arguments are scheduled for May, but Cuccinelli is still deciding if he should attempt to skip the Fourth Circuit and take the lawsuit to the U.S. Supreme Court.

"Right now, there is a great deal of uncertainty for states, individuals, and businesses. Major decisions are already being made and money is already being spent to comply with a law that may not be around two years from now. We need this suit resolved as quickly as possible, for the good of our citizens and our economy," Cuccinelli said.

In making his ruling, Hudson mentioned that the final word will rest with the high court.

"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 mandate does not take effect until 2014. If it 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.

The bill passed in March, and lawsuits came immediately.

The federal government argues that Congress determined the mandate is essential to the law's success.

"That judgment rested on a number of Congressional findings," the Department of Health and Human Services wrote.

"Congress found that, by 'significantly reducing the number of the uninsured, the requirement, together with the other provisions of this Act, will lower health insurance premiums.'

"Conversely, and importantly, Congress also found that, without the minimum coverage provision, the reforms in the Act, such as the ban on denying coverage or charging more based on pre-existing conditions, would amplify existing incentives for individuals to 'wait to purchase health insurance until they needed care,' thereby further shifting costs onto third parties."

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