Va. AG asks U.S. SC to take on health care reform

By John O'Brien | Feb 9, 2011


WASHINGTON (Legal Newsline) - Virginia Attorney General Ken Cuccinelli has asked the U.S. Supreme Court to consider his lawsuit challenging health care reform.

Cuccinelli filed a petition with the court Tuesday, asking it to consider the issue before a federal appeals court does. He says the issue is of such public importance that it is better to have it decided as soon as possible.

"There is a palpable consensus in this country that the question of (the Patient Protection and Affordable Care Act's) constitutionality must be and will be decided in this Court," Cuccinelli wrote. "Under these circumstances, the issues presented here should be considered to be at least as important as those presented in many of the cases where immediate review has been permitted..."

Cuccinelli's lawsuit says a mandate requiring individuals to purchase health insurance or face an annual $695 penalty is unconstitutional and flies in the face off Virginia law. U.S. District Judge Henry Hudson agreed with Cuccinelli's argument in December.

Earlier this month, a federal judge sided with 26 states in a similar lawsuit in Florida.

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.'"

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

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