Va. AG: 'Do nothing' a way around health care law

By Jessica M. Karmasek | Jul 23, 2012


RICHMOND, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli, a vocal opponent of President Barack Obama's federal health care law, claims he has found a way around the controversial reform.

The Washington Post reports that Cuccinelli told a group of tea partiers in Richmond last week that states can shield businesses from the law's fines for not providing insurance for employees by refusing to set up state-based exchanges.

The attorney general contends that the Patient Protection and Affordable Care Act includes a provision to impose fines under state-based exchanges but not under federal ones.

"In the law, it says those penalties don't apply if the federal government sets up the exchange," Cuccinelli told the gathering, according to the Post. "Whoops!"

Those who support the law told the newspaper that the attorney general's reasoning doesn't fly, and that the issue has been resolved through regulations recently issued by the Internal Revenue Service.

Cuccinelli had initially railed against the U.S. Supreme Court's ruling last month mostly upholding the health care law.

However, he admitted soon after that it was "not a sad day at all."

The Republican attorney general said he was most concerned about the ruling's impact on individual liberty and the U.S. Constitution.

"Obviously, I don't support much of the policy," Cuccinelli said following the Court's highly anticipated June 28 ruling. "And that is a loss from my perspective.

"But having read more of the opinions, I'm much relieved about individual rights and the states' rights within the constitutional structure."

More than two years after Obama's Affordable Care Act was signed into law, the Court ruled 5-4 that most of it is constitutional.

In particular, the Court said the controversial provision of the health care reform requiring individuals to purchase insurance or face a financial penalty is a constitutional tax.

The individual mandate imposed a $695 annual penalty on individuals who did not purchase health insurance. Obama's own budget director said in February that the mandate was not a tax.

"The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax," Chief Justice John Roberts wrote.

"Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."

Roberts was joined in the majority by Obama-appointees Sonia Sotomayor and Elena Kagan, as well as Ruth Bader Ginsburg and Stephen Breyer. Voting against the law were justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito.

The Court's opinion also said that if a state does not comply with new eligibility requirements for Medicaid, the states can only lose new funds available instead of all of their funding.

Cuccinelli had filed a separate lawsuit against the law over its individual mandate.

Last year, the U.S. Court of Appeals for the Fourth Circuit ruled in Virginia's case that Cuccinelli did not have standing to challenge the law on behalf of the State because it wouldn't be affected by the mandate.

Only individual Virginians would be, the court said in overturning a district judge's ruling.

From Legal Newsline: Reach Jessica Karmasek by email at

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