Cuccinelli: Va. right to challenge health care reform

By John O'Brien | Jun 8, 2010


RICHMOND, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli defended his challenge to health care reform Monday, arguing the federal government has a twisted take on federalism.

Cuccinelli filed a response to the federal government's motion to dismiss, which will be the subject of oral arguments July 1. Cuccinelli is challenging a mandate in the health care package that requires individuals to purchase health insurance or face an annual penalty of $695.

That mandate conflicts with a state law that says Virginia citizens can not be forced to buy 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 says.

"(W)hen the Secretary asserts dismissively that '(a) state cannot, however, manufacture its own standing to challenge a federal law by the simple expedient of passing a statute purporting to nullify it,' she fails to appreciate the fact that a state, acting within the scope of its sovereign interests while claiming to exercise a traditional state authority, is uniquely different from any other litigant precisely because of its power to enact a code of law.

"Her use of the term 'nullify' is likewise jurisprudentially inapt. As Justice (Sandra Day) O'Connor noted in New York v. United States, a state which seeks the aid of the federal courts in resolving competing claims of state and federal power acts in accordance with the foundational and traditional function of those courts."

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.

The federal government filed its motion to dismiss Cuccinelli's May 25.

"Based on extensive hearings and expert evidence, Congress concluded that requiring the financially able to purchase health insurance would spread risks across a larger pool, which (as with all insurance) would allow insurers to charge less for coverage..." it says.

"Congress determined that, without the minimum coverage provision, the reforms in the Act, such as the ban on denying coverage based on pre-existing conditions, would not work, as they would amplify existing incentives for individuals to 'wait to purchase health insurance until they needed care,' which in turn would shift even greater costs onto third parties."

Oral arguments regarding motions for summary judgment will be held Oct. 18 in the case, and the two sides were instructed to create their own briefing schedule.

Amicus briefs are due 14 days before arguments on the motion they discuss.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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