Virginia AG Cuccinelli: Challenge to Federal Health Care Law Is About ‘Liberty’ and Containing Federal Power

October 19, 2010 - 7:36 PM


ken cuccinelli

Kenneth T. Cuccinelli II, attorney general for the State of Virginia. (Photo from Cuccinelli’s official Web site)

(CNSNews.com) – Virginia Attorney General Ken Cuccinelli says his state’s challenge to the Democrats' new health care law is about defending liberty from a federal government that has overstepped its constitutional bounds.

Cuccinelli, who spoke Monday following oral arguments in federal district court in Richmond, Va., said the reason the federal government has never before enacted such a sweeping law was that “everybody, up to now” recognized that doing so was clearly unconstitutional.

“The reason there’s never been a law like this – in all of history – is because everybody up to now in this country has recognized that this would be unconstitutional, all the Congresses and presidents before this one,” said Cuccinelli, a Republican. 

The Commonwealth of Virginia is challenging a mandate in the Patient Protection and Affordable Care Act that says every American must purchase, or carry, health insurance or pay a penalty.  Cuccinelli and other critics of the law argue that the federal government does not have the constitutional authority to require that any person purchase any specific product or service.

If the government mandates that citizens buy health insurance, it could also mandate that citizens buy, for example, flood insurance or dental insurance, or even an electric car or solar panels.  

“This case is ultimately not about health insurance or health care,” said Cuccinelli.  “This case is about protecting liberty. It is about the outer reach of federal power, and Virginia is attempting to put the federal government back inside the constitutional fence that the Founding Fathers put in place to contain its power.”

Cuccinelli warned that if the law is upheld, the government could justify almost any action on its power to regulate commerce. "If Virginia loses this fight and the federal government is allowed to cross this line, Congress will be granted virtually an unlimited power to order you to buy anything,” Cuccinelli explained. “That’s not rhetoric, that’s reality.”

The Obama administration is defending the insurance-purchase mandate on two fronts. First, it argues that Congress has the power to require the purchase of insurance through the Commerce Clause of the Constitution (Article 1, Section 8), which grants Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The federal government argues that by forgoing the purchase of health insurance, people are affecting the national health care market by shifting the costs of their health care onto other parts of the system by visiting emergency rooms or relying on publicly financed programs like Medicaid.

The Commonwealth of Virginia, through Cuccinelli’s office, argues that the federal government’s Commerce Clause defense is absurd, pointing out that not buying health insurance is not economic activity at all but economic inactivity.

Because not buying health insurance is by definition not an economic activity, the commonwealth argues, the government has no power under the Commerce Clause to regulate it.

The federal government presents a second argument in defense of the new law, which Cuccinelli referred to as a “fallback argument.”

In this defense, the Obama administration says that the individual mandate is justified because the penalty used to enforce it is merely a tax, falling within Congress’ authority to tax. Because the penalty is enforced under the federal tax code, the administration argues it is constitutional.

health care-obama

President Barack Obama and Vice President Joe Biden react to cheers as they arrive in the East Room of the White House in Washington, Tuesday, March 23, 2010, for the signing ceremony for the health care bill. (AP Photo/J. Scott Applewhite)

The Commonwealth of Virginia counters that this defense is disingenuous, noting that the penalty is called such in the law itself – “penalty” -- highlighting that it has never before been called a tax by the federal government. Virginia also argues that when the law was being debated in Congress, both the administration and congressional leaders defended the mandate penalty as a “penalty” and not a “tax.”

Also at issue is the fact that the health care reform law lacks a severability clause. This type of clause – normally tacked on to the end of contracts and legislation – allows courts to throw out, or sever, individual pieces of the law.

Laws without a severability clause cannot be adjudicated in this way.

Instead, a judge must decide whether the other provisions of the law – those not being challenged in court – could have passed without the provisions that are being challenged.

The commonwealth argues that the other myriad provisions of the health care law could not have passed without the individual mandate, pointing to congressional and administration statements citing the mandate as the lynch pin of the entire health care reform effort.

Those administration and congressional arguments stated that without the individual mandate, the other provisions of the law were meaningless because people would merely continue to avoid buying insurance, making the cost of the effort prohibitively high.

The case is now awaiting a decision from Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia. A ruling is expected by the end of the year.