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Cuccinelli sues federal government to stop health-care reform law

By Rosalind S. Helderman
Washington Post Staff Writer
Wednesday, March 24, 2010; A01

RICHMOND -- Not five minutes after President Obama signed health-care legislation into law Tuesday, top staff members for Virginia Attorney General Ken Cuccinelli II made their way out of his office, court papers in hand and TV cameras in pursuit, and headed to Richmond's federal courthouse to sue to stop the measure.

Thirteen other state attorneys general also sought to stop the health-care law Tuesday, jointly suing in Florida. But Cuccinelli (R) went his own way, arguing that a Virginia law enacted this month that prohibits the government from requiring people to buy health insurance creates an "immediate, actual controversy" between state and federal law that gives the state unique standing on which to sue.

The move was classic Cuccinelli -- bold, defiant and in-your-face, an effort to use any means at his disposal to stop what he sees as a federal government gone wild. That approach has transformed him in just a few months from being a fairly obscure state senator into a national conservative folk hero -- a tea partier with conviction and, more importantly, power.

Since vowing last week to sue to stop health-care reform, Cuccinelli has become a fixture on national cable TV news shows. A conservative blog posted a cartoon of his head atop Superman's body, with the caption: "You don't tug on Superman's cape . . . and you don't mess around with Ken." His Facebook page is full of messages of support from across the country, some next to the yellow "Don't Tread on Me" flag, which Cuccinelli has embraced -- one sits next to the Virginia flag in his office.

To his supporters, Cuccinelli is the necessary antidote to Obama, determined to put government back where he thinks it belongs and follow the letter of the law, without regard to political consequences.

"People are tired of the middle-of-the-road, wishy-washy political talk. . . . They want people who will shoot straight and do what they say they will. And that's Ken," said Jamie Radtke, chairman of the Federation of Virginia Tea Party Patriots. "He was a tea party person before there was a tea party," she said.

But as the fervency and number of Cuccinelli's supporters have grown, so has the vigor of his detractors, who are convinced that he is an ideologue using his office to further a political agenda and that he is interested only in representing those who share his views.

"He thinks he's the attorney general for Fox News," said Paul Goldman, a Richmond lawyer and former head of the Virginia Democratic Party. "He wants to be Glenn Beck's favorite attorney general, and he's moving right on up there."

Before filing his lawsuit Tuesday, Cuccinelli had filed briefs to challenge the science of global warming and the Environmental Protection Agency's ability to regulate greenhouse gases. This month, he wrote letters to every public college in Virginia to say that they could not adopt nondiscrimination policies that protect gays without authority from the General Assembly.

About 50 students and alumni associated with campus gay rights groups protested Cuccinelli's appearance Tuesday evening at George Mason University's law school, of which he is an alumnus, holding signs reading "Cuccinelli: Bad for Virginia" and "Virginia Is for All Lovers."

In his suit to stop the health-care law, Cuccinelli says the legislation's requirement that individuals buy health insurance exceeds the federal government's power to regulate interstate commerce under the U.S. Constitution.

The lawsuit filed by Florida Attorney General Bill McCollum (R) and joined by other attorneys general presents a different argument. It says the new law violates the 10th Amendment by forcing states to carry out its provisions while not reimbursing them for the costs.

Legal experts have expressed skepticism about the likelihood of success for either approach but have indicated that there are few direct precedents in either case on which to predict Supreme Court action.

It's not just Cuccinelli's aggressive challenge to the federal government that gratifies many grass-roots activists -- it's his willingness to rock the boat in defense of his agenda.

"This is what we hired him for," said Ron Wilcox, a Fairfax County resident and organizer with the Northern Virginia Tea Party.

During his campaign last year, Cuccinelli met with tea party groups across Virginia. When more than 1,000 rallied in Richmond in January in support of the state's anti-individual mandate bill, Cuccinelli took to the stairs of the historic bell tower in Capitol Square to address the crowd.

"It's time for people like you all to step up and to draw the lines that our Founding Fathers thought they drew very clearly," Cuccinelli told the crowd. "We need to reemphasize that there are sovereigns in America. One of those is the Commonwealth of Virginia."

At the state's Republican convention in May, Cuccinelli promised not to just "go along to get along," which he termed the "toughest test" of conservative principles.

Cuccinelli's newfound stature in his party could create tension in Richmond, where just a few short weeks ago it was Gov. Robert F. McDonnell who was being held up as the new face of the Republican Party, chosen by national leaders to deliver the response to Obama's State of the Union address.

Although ideologically in line with McDonnell, who was also elected in November and supports Cuccinelli's lawsuit to stop the health-care law, Cuccinelli and his confrontational style could complicate the governor's efforts to rebrand the GOP as inclusive and pragmatic.

Cuccinelli did not alert McDonnell's office before sending his letter on nondiscrimination policies to colleges and universities, leaving officials to learn of it through a media inquiry. Although McDonnell agreed with Cuccinelli's legal reasoning, protests that followed were a distraction while McDonnell was trying to help legislators adopt a budget and conclude the first legislative session of his term.

"This back-of-the-hand, gratuitous, finger-in-your-eye, hand-on-the-chest stuff -- people don't feel good about it," said a senior Republican strategist in Richmond, who spoke on condition of anonymity to avoid creating a rift in the party. "It's not how you build a broad-based coalition."

Democrats have sought to feature Cuccinelli in fundraising appeals and make him a favorite of liberal blogs and prime-time coverage on MSNBC.

Audio of Cuccinelli answering questions about how courts could be used to challenge Obama's citizenship quickly made its way around the Internet, along with a video shot during the campaign of Cuccinelli discussing how the government could use Social Security numbers to track people.

Cuccinelli said that he was answering hypothetical questions about Obama's citizenship and that he believes the president was born in the United States.

Staff writer Derek Kravitz contributed to this report.

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