Va. set to challenge federal health-care reform legislation

By Rosalind S. Helderman
Washington Post Staff Writer
Thursday, March 18, 2010

RICHMOND -- Virginia will file a legal challenge to the constitutionality of the Democratic health-care reform bill if Congress approves the measure, a spokesman for Attorney General Ken Cuccinelli II said Wednesday.

Cuccinelli (R), a social and fiscal conservative who has expressed deep skepticism about the growth of the federal government, has said since his fall election campaign that he was studying the legal issues involved in such a suit. His spokesman said Wednesday that Cuccinelli has decided he will challenge the measure.

The announcement came two days before President Obama is scheduled to visit Fairfax County to hold a final rally in support of the health-care bill before the congressional vote. Last week, Virginia became the first state to pass a bill declaring it illegal for the government to require individuals to purchase health insurance, a key component of the bills under consideration on Capitol Hill.

Cuccinelli's spokesman Brian Gottstein would provide no details on the legal rationale for such a suit and indicated the office is studying the issue.

But in a column in this month's American Spectator magazine, Cuccinelli wrote that the reform efforts "violate the plain text of both the Ninth and Tenth Amendments."

"Proponents of liberty must use all of the tools the Constitution provides to defend against this onslaught on our liberty," he wrote.

"In seeking to protect the liberties guaranteed by the Constitution, we are vigorously pursuing freedom for our citizens in the face of a government that, no matter how well intentioned, seeks to expand its power at citizens' expense."

Also Wednesday, Cuccinelli wrote a letter to U.S. House Speaker Nancy Pelosi (D-Calif.), warning that use of a parliamentary procedure known as "deem and pass," in which the House would approve the Senate's health-care bill without a direct vote, would "expose any act which may pass to yet another constitutional challenge." Pelosi is weighing use of the procedure.

Tucker Martin, a spokesman for Gov. Robert F. McDonnell (R), said: "The governor shares the significant concerns raised about various components of the health-care bill currently in front of Congress, including the mandatory coverage piece of the legislation. He has not reviewed the constitutional issues involved in the 'deem and pass' procedure that may be employed for passage of the bill, and we cannot comment on that matter at this time."

It is not clear whether Cuccinelli and other state attorneys general would have standing to sue over the federal reform and whether such suits would find favor with the federal courts.

"The attorney general is tapped into a strong sentiment -- that Congress should not be telling us what we must do," said Richmond lawyer and constitutional scholar Steve Benjamin. "The problem is that Congress has been doing just that for over 80 years. The better chance for success probably lies at the polls."

Cuccinelli has filed legal challenges to the Obama administration's effort to regulate greenhouse gas emissions.

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