Va. AG appeals ObamaCare ruling

John O'Brien Oct. 1, 2011, 12:51pm


WASHINGTON (Legal Newsline) - Virginia Attorney General Ken Cuccinelli is the latest to ask the U.S. Supreme Court to hear arguments over federal health care reform.

Cuccinelli is appealing a recent ruling by the U.S. Court of Appeals for the Fourth Circuit that said he did not have legal standing to challenge last year's health care law, which is the subject of many other lawsuits.

One such lawsuit has 26 states challenging a mandate in the law that requires individuals who do not purchase health insurance to pay a $695 yearly penalty. The 11th Circuit sided with the states, but the third and sixth circuits have ruled for ObamaCare.

"The Founding Fathers fully intended that the states would serve as a check on federal power. When the Fourth Circuit ruled that Virginia lacked standing to defend a duly enacted state law from federal preemption, it took away much of the states' ability to serve that function," Cuccinelli said.

Cuccinelli's case said the law interfered with a Virginia law that said individuals do not have to purchase health insurance. U.S. District Judge Henry Hudson agreed before the Fourth Circuit overruled him.

The Fourth Circuit said the mandate does not affect the state of Virginia, so the attorney general had no standing to bring the suit. It said residents of Virginia are the only ones affected.

"(T)he sole provision challenged here - the individual mandate - imposes no obligations on the sole plaintiff, Virginia," Judge Diana Gribbon Motz wrote. "Notwithstanding this fact, Virginia maintains that it has standing to bring this action because the individual mandate allegedly conflicts with a newly enacted state statute, the Virginia Health Care Freedom Act.

"Contrary to Virginia's arguments, the mere existence of a state law like the VHCFA does not license a state to mount a judicial challenge to any federal statute with which the state law assertedly conflicts.

"Rather, only when a federal law interferes with a state's exercise of its sovereign 'power to create and enforce a legal code' does it inflict on the state the requisite injury-in-fact."

The 11th Circuit's ruling was appealed this week. Eleventh Circuit Chief Judge Joel Dubina authored its opinion and was joined by Judge Frank Hull in the majority. Judge Stanley Marcus voted against the states.

"The individual mandate exceeds Congress's enumerated commerce power and is unconstitutional," Dubina wrote. "This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives."

In January, U.S. District Judge Roger Vinson found that Congress was unconstitutionally regulating economic inactivity and, because the mandate is too integral a part to be separated, he voided the entire legislation. He called it "a difficult decision to reach."

The 11th Circuit's decision, though, did not void the entire legislation.

"Excising the individual mandate from the Act does not prevent the remaining provisions from being 'fully operative as a law,'" Dubina wrote.

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

More News