W.Va. candidate plans to join health care challenge

By Jessica M. Karmasek | Feb 22, 2011


CHARLESTON, W.Va. (Legal Newsline) - Mark Sorsaia, one of West Virginia's gubernatorial candidates, said Monday that if elected he plans to join the 26 states that have filed legal action against President Barack Obama's new health care law.

In a statement, the Putnam County prosecutor said once elected governor, "he would immediately take steps to have West Virginia join the other states."

Earlier this month, Acting Gov. Earl Ray Tomblin signed House Bill 2853 into law. The bill sets this year's special primary and gubernatorial election dates for May 14 and Oct. 4, respectively. Tomblin took over for now-U.S. Sen. Joe Manchin, who resigned with more than a year left in his term. According to a recent state Supreme Court ruling, a governor must be elected by Nov. 15.

Sorsaia, one of the eight official Republican candidates, said he agrees that the new health care law violates the U.S. Constitution.

"The constitutionality issue of the national health care law will likely end up going before the U.S. Supreme Court. Until then, it is up to individual states to take action against this big-government power grab," he said.

On Jan. 31, U.S. District Judge Roger Vinson released a 78-page decision that said the federal government is unfairly trying to regulate economic inactivity under the Commerce Clause of the U.S. Constitution. Vinson granted summary judgment on that issue to the 26 states that have challenged health care reform.

Twenty states, led by Florida, filed the lawsuit in March after Obama signed the legislation into law. Recently, six states joined the effort.

The states are challenging a $695 annual penalty that will be imposed on individuals who do not purchase health insurance. Virginia, in a separate lawsuit, is defending a state law that says none of its residents can be penalized for not purchasing health insurance.

Because the mandate is too integral a part to be separated, Vinson voided the entire legislation. 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 wrote.

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

On Friday, Vinson issued an order that would give the 26 states three business days to respond to the government's motion for clarity.

The U.S. Department of Justice, on behalf of the Obama administration, filed its motion on Thursday in response to Vinson's recent ruling. The federal government contends that they must continue to implement the law even though it has been declared unconstitutional by Vinson.

In its accompanying 17-page memorandum, the federal government wrote the court's declaratory judgment "potentially implicates hundreds of provisions of the (Patient Protection and Affordable Care) Act and, if it were interpreted to apply to programs currently in effect, duties currently in force, taxes currently being collected, and tax credits that may be owed at this time or in the near future, would create substantial uncertainty.

"Because of the sweeping nature of the declaratory judgment, such an interpretation would pose a risk of substantial disruption and hardship for those who rely on the provisions that have already been implemented."

In Vinson's order on Friday, he said that typically the plaintiffs would have 14 days in which to file a response to the defendants' motion. "However, because time is of the essence in this matter, and because everyone in this country would obviously benefit from certainty and final resolution of the case sooner rather than later, I do not think it necessary or appropriate to adhere to the briefing schedule that would normally apply."

West Virginia's official list of gubernatorial candidates -- or those who have filed a certificate announcement and paid the corresponding filing fee with the Secretary of State's Office -- include, as of Tuesday:

- Clark Barnes, a Republican from Randolph County;

- Mitch Carmichael, a Republican from Jackson County;

- Ralph William Clark, a Republican from Monongalia County;

- Cliff Ellis, a Republican from Monongalia County;

- Larry V. Faircloth, a Republican from Berkeley County;

- Former Secretary of State Betty Ireland, a Republican from Kanawha County;

- Acting Senate President Jeff Kessler, a Democrat from Marshall County;

- Bill Maloney, a Republican from Monongalia County;

- Arne Moltis, a Democrat from Kanawha County;

- State Treasurer John D. Perdue, a Democrat from Kanawha County;

- Sorsaia from Putnam County;

- Secretary of State Natalie Tennant, a Democrat from Kanawha County;

- House Speaker Rick Thompson, a Democrat from Wayne County; and

- Tomblin, a Democrat from Logan County.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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