Fourth Circuit rules against Va. AG in ObamaCare challenge

By John O'Brien | Sep 8, 2011


RICHMOND, Va. (Legal Newsline) - Because only the residents of Virginia will be affected by the controversial part of ObamaCare, the State - through Attorney General Ken Cuccinelli - lacked standing to challenge it, a federal appeals court has ruled.

The U.S. Court of Appeals for the Fourth Circuit issued a decision Thursday that overturns a prior ruling by U.S. District Judge Henry Hudson, who had agreed with Cuccinelli that a mandate included in federal health care reform is unconstitutional.

A three-judge panel of the Fourth Circuit wrote that the mandate does not affect the state Cuccinelli represents.

"(T)he sole provision challenged here - the individual mandate - imposes no obligations on the sole plaintiff, Virginia," Judge Diana Gribbon Motz wrote. "Notwithstanding this fact, Virginia maintains that it has standing to bring this action because the individual mandate allegedly conflicts with a newly enacted state statute, the Virginia Health Care Freedom Act."

The mandate requires individuals who do not purchase health insurance to pay a yearly $695 penalty. Cuccinelli argued that the mandate clashed with the VHCFA, which says Virginians are not required to purchase health insurance.

"Contrary to Virginia's arguments, the mere existence of a state law like the VHCFA does not license a state to mount a judicial challenge to any federal statute with which the state law assertedly conflicts," Motz wrote.

"Rather, only when a federal law interferes with a state's exercise of its sovereign 'power to create and enforce a legal code' does it inflict on the state the requisite injury-in-fact."

Motz was joined in the decision by judges Andre Davis and James Wynn. Motz was appointed to her spot by President Bill Clinton, while the other two were Obama-appointees.

Stephen Presser, a professor of legal history at Northwest University's law school, noted that the Fourth Circuit did not rule on the constitutionality of the mandate.

"The court ruled that since the individual mandate applies only to individuals, the state of Virginia... had no 'standing,' or, in other words, the state could not stand in the shoes of the individual Virginians affected by the act," Presser said.

"This decision might well be questionable, but the court did note that important Constitutional issues were involved, and even the court conceded that those issues should be resolved in an appropriate forum."

The Fourth Circuit joined the third and sixth circuits in ruling against challenges to the law.

The Third Circuit ruled earlier in August that a group of New Jersey physicians did not have standing to challenge the law. The Sixth Circuit ruled 2-1 in June for Obama, while the 11th Circuit sided with a group of 26 states that claim the mandate is unconstitutional.

The issue will ultimately be decided by the U.S. Supreme Court.

Eleventh Circuit Chief Judge Joel Dubina authored its opinion and was joined by Judge Frank Hull in the majority. Judge Stanley Marcus voted against the states.

"The individual mandate exceeds Congress's enumerated commerce power and is unconstitutional," Dubina wrote. "This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives."

In January, U.S. District Judge Roger Vinson found that Congress was unconstitutionally regulating economic inactivity and, because the mandate is too integral a part to be separated, he voided the entire legislation. He called it "a difficult decision to reach."

The 11th Circuit's decision, though, did not void the entire legislation.

"Excising the individual mandate from the Act does not prevent the remaining provisions from being 'fully operative as a law,'" Dubina wrote.

Cuccinelli can request a rehearing before the entire roster of Fourth Circuit judges or appeal directly to the U.S. Supreme Court. He had previously petitioned to expedite the appeal in order to bring it to the Supreme Court quicker, but was turned down.

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

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