September 8, 2011

MINUTES AFTER President Obama signed his health-care program into law on March 23, 2010, Virginia Attorney General Ken Cuccinelli II raced to become the first state official to challenge it in court. But as a federal appeals court panel concluded Thursday, being first isn’t the same as being right.

A unanimous panel of the U.S. Court of Appeals for the 4th Circuit issued a bruising rebuke of Mr. Cuccinelli and his theories. The court did not address Mr. Cuccinelli’s attack on the constitutionality of the individual mandate, the controversial linchpin of the program that would require individuals to buy health insurance. Instead, the three-judge panel, which was made of Democratic appointees, slammed the grandstanding attorney general for rushing to the courthouse in the first place — and with a flimsy complaint.

Before a plaintiff can proceed with a lawsuit, he must show he has been harmed and that the entity he is suing is responsible. Other challenges to the health-care law — including those filed by other states — have included individuals and groups that would be directly affected by the federal program. Mr. Cuccinelli eschewed that approach.

Instead, he argued that Virginia and its residents would be harmed because the federal mandate would obliterate the Virginia Health Care Freedom Act (VHCFA). The act says that no resident of Virginia “shall be required to obtain or maintain a policy of individual insurance coverage.”

But here’s the problem: The Virginia act was not signed into law until the day after Mr. Cuccinelli filed the lawsuit. “The only apparent function of the VHCFA is to declare Virginia’s opposition to a federal insurance mandate,” the court wrote. “And, in fact, the timing of the VHCFA, along with the statements accompanying its passage, make clear that Virginia officials enacted the statute for precisely this declaratory purpose.”

Even if timing were not an issue, the notion that a state could nullify a federal program in this way is absurd. Imagine, the court mused, if the commonwealth declared, “no Virginia resident shall be required to pay Social Security taxes and proceed to file a lawsuit challenging the Social Security Act.”

Mr. Cuccinelli has vowed to appeal the ruling, perhaps by asking the full 4th Circuit to rehear the case or by filing directly with the U.S. Supreme Court. But he should not succeed in his quest. Two other appeals courts — one based in Cincinnati and the other in Atlanta — have issued serious and conflicting opinions on the constitutionality of the health insurance mandate. The case is ripe for Supreme Court review.

We believe the mandate to be constitutional and hope the high court agrees. But it is important that the justices focus on weighing this issue without getting sidetracked by the technical and jurisdictional silliness that plagues the Virginia case.