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Va. AG wants U.S. SC to look at health care challenge

By John O'Brien | Feb 3, 2011


RICHMOND, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli wants his so-far successful challenge of federal health care reform to be heard by the U.S. Supreme Court as soon as possible.

Cuccinelli announced Thursday that he will seek expedited review of his lawsuit, which says a mandate requiring individuals to purchase health insurance or face a financial penalty is unconstitutional and flies in the face off Virginia law.

U.S. District Judge Henry Hudson agreed with Cuccinelli's argument in December, and the U.S. Court of Appeals for the Fourth Circuit expedited the federal government's appeal last week.

Monday, a federal judge sided with 26 states in a similar lawsuit in Florida.

"Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible," said Cuccinelli.

"Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional. Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone's best interest."

Cuccinelli says the U.S. Supreme Court may provide review before the Fourth Circuit does if he can show the case is of imperative public importance. Oral arguments before the Fourth Circuit are currently scheduled for May.

"We did not make this decision lightly. Given his unique responsibilities to fund and implement PPACA as Governor of Virginia, Gov. (Bob) McDonnell is particularly concerned about the possibility of wasting precious and strained taxpayer dollars preparing for a law that may well be struck down." Cuccinelli said.

The mandate requires an individual to purchase health insurance or face a $695 yearly penalty. Virginia passed a law before President Barack Obama signed health care reform that says no Virginian can be made to purchase health insurance.

Because the mandate is too integral a part to be separated, U.S. District Judge Roger Vinson voided the entire legislation in the 26-state lawsuit. He called it "a difficult decision to reach."

"If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not," he added.

"It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."

He ruled the mandate regulated inactivity in a marketplace, and wrote, "It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause."

And to allow otherwise would be dangerous, Vinson ruled. He pointed out that other jurists have opined on the threat of an overexpanded Commerce Clause.

"There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort," he wrote.

"The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that --- when aggregated with similar economic decisions --- affect the price of that particular product or service and have a substantial effect on interstate commerce."

In a footnote, he added, "As was discussed at the hearing, even personal decisions about whether to marry, whom to marry, or whether to have children could also be characterized as 'economic decisions.'"

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