RICHMOND, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli, in a recent law review article, says that his state's lawsuit against the federal health care law is about more than just health care.

The attorney general, Solicitor General Duncan Getchell Jr. and Deputy Attorney General Wesley G. Russell Jr. together wrote the article for the Texas Review of Law & Politics. The 46-page article was published in its Spring 2011 edition.

In it, Cuccinelli explains Virginia's position in the lawsuit against the federal government.

The suit, he says, is really about the scope of the power of the federal government and the boundaries of the U.S. Constitution.

Virginia is not suggesting that the United States lacks the power to erect a national health care system, he says.

"No challenge has been mounted by Virginia to the vast sweep and scope of the Patient Protection and Affordable Care Act. Instead, only the mandate and penalty were challenged because the claimed power is tantamount to a national police power inasmuch as it lacks principled limits," the attorney general wrote.

Virginia's lawsuit argues that the law's individual mandate requiring that all Americans purchase health insurance or face a penalty is unconstitutional and violates state law.

Cuccinelli says this is "an odd moment" for Congress to claim the power to require one citizen to purchase a good or service from another -- in this case, health insurance.

"It has been asserted only recently without judicial foreshadowing or doctrinal preparation. Because of its sheer novelty, it arrives in the courts with a presumption of invalidity. Nor does Congress require it in order to create, maintain or enlarge the regulatory welfare state," he wrote.

"Congress has been found to have plenary power to do that under the taxing and spending powers, and Virginia in its suit has challenged none of what has gone before. In short, the federal government may tax, spend and borrow to the extent of its political will."

But therein lies the problem, the attorney general says.

"The public perception is growing that the United States is dangerously in debt and that its social programs -- like those in the rest of the economically advanced world -- are unsustainable," he wrote.

"The votes were not there to finance national health care in the usual way, i.e., via a new or higher tax, so the mandate and penalty were brought in."

Cuccinelli says acknowledging the legitimacy of "this new power" would fundamentally alter the relationship between government and the American citizen.

It would also mean a government whose enactments depend on "entrenched career politicians who are more accessible to representatives of special interests than they are to their distant constituents," he says.

Cuccinelli points to the facts surrounding the health care law.

"PPACA was drafted in secret and passed the Senate without a committee hearing or report on Christmas Eve amid scenes of parliamentary brutality. Measured by polls, PPACA stands in the statute books contrary to the will of the American people," he wrote.

"And, at the next election following its enactment, the Republican Party gained the largest number of seats in the House of Representatives since President Roosevelt was rebuked in the 1938 elections after his court packing plan had failed."

Interest group politics, Cuccinelli says, have carried the country "significantly away" from the old natural law concept of governance exclusively for the general good.

"But subordinating the Constitution to the perceived exigencies of the day would be against the common interest no matter how ardently the proponents of the mandate and penalty might desire them for utilitarian reasons," he wrote.

But the battle for liberty is never over, he says.

"The challenges to the health care law are our generation's battle field in that ceaseless struggle," Cuccinelli wrote.

From Legal Newsline: Reach Jessica Karmasek by email at

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