Former U.S. AGs support Cuccinelli's health care challenge

By Jessica M. Karmasek | Oct 13, 2010


RICHMOND, Va. (Legal Newsline) - Three former U.S. attorneys general, in a brief filed Tuesday, say they are in support of Virginia's lawsuit challenging the Obama administration's health care reform law.

In a 37-page amicus brief, William Barr, Edwin Meese and Dick Thornburgh write that they support Virginia Attorney General Ken Cuccinelli's claim that the federal government doesn't have the right to order individuals to buy its health insurance or face a yearly payment.

Individuals without health insurance face a yearly $695 payment under health care reform signed into law in March by President Barack Obama.

The three former attorneys general submitted their brief in support of Cuccinelli's motion for summary judgment.

They argue that because the mandate is not a direct regulation of commerce, it must be both "necessary and proper for carrying into execution" a regulation of interstate commerce.

But they say it is neither.

"The decision not to buy insurance is not a transaction in insurance, health care, or any other commerce," the three wrote. "Put differently, there is no argument that the government could impose the individual mandate in a vacuum."

The failure to buy insurance is not part of an economic "class of activities (that) is within the reach of federal power," they wrote. "Rather, it is inactivity that is beyond the federal power."

The government's attempt to redefine regulation of "activities" as including regulation of any "decisions... defies logic and knows no bounds," they said.

Barr, Meese and Thornburgh said if the federal government can force its citizens to buy health insurance, there's no stopping it from requiring Americans to buy a General Motors car or take out a mortgage.

"The possibilities for both novel and broad regulations of private behavior of law-abiding citizens are endless," they wrote.

The three also argued that the mandate is "particularly suspect" because unlike the fundamental duties of citizenship, it imposes an obligation not to the government, but to a private party.

Cuccinelli did not join in a federal lawsuit filed by other state attorneys general after Obama signed the reform legislation into law, but instead elected to file a suit of his own.

His is different in that it argues a Virginia law prevents the federal government from forcing individuals to purchase health insurance.

Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia is set to hear oral arguments on the attorney general's motion for summary judgment next Monday.

Cuccinelli has said he hopes the court will issue a verdict on the constitutionality of the health care law by Thanksgiving but suspects it will eventually go to the U.S. Supreme Court.

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

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