Virginia attorney general urges judge to let suit over health-care law proceed

Attorney General Ken Cuccinelli II
Attorney General Ken Cuccinelli II (Bob Brown - AP)
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By Rosalind S. Helderman
Washington Post Staff Writer
Tuesday, June 8, 2010

RICHMOND -- Virginia Attorney General Ken Cuccinelli II told a federal judge Monday that he should let a suit challenging the constitutionality of the federal health-care law proceed and deny a request by the Obama administration that the case be dismissed.

In 41-page memorandum, Cuccinelli argued that federal lawyers acting on behalf of Health and Human Services Secretary Kathleen Sebelius were off base when they contended that Virginia has no standing to sue over the law, a key claim of the government's motion that the case be dismissed. Cuccinelli also disputed that Congress has the right to mandate that individuals buy health insurance or pay a fine under its constitutional right to regulate interstate trade.

Virginia has sued separately from a case in Florida that includes 20 other states. The commonwealth's case will probably be heard first because it was filed in the speedy Eastern District of Virginia. A judge will hear oral arguments on the motion to dismiss the case July 1.

At turns, Cuccinelli's brief delves deeply into intricate legal arguments and then offers plain-spoken and harsh critiques of the political process that led to congressional approval of the health-care law.

Of the health-care law, he writes, "Cobbled together in secret, [it] was passed by the Senate, largely or totally unread, on a party line vote, literally in the dead of night on Christmas Eve, against the will of the people as measured by most polls; a product of such florid deal-making as to generate scornful popular terms such as 'the Louisiana Purchase' and 'the Cornhusker Kickback.' "

He argues that Virginia has standing to sue because of a law passed this year by the General Assembly that makes it illegal to require individuals to buy health insurance. Virginia's law need not be supplanted by the federal law, as President Obama's attorneys had argued, if the federal law is deemed unconstitutional, he writes.

To imply otherwise, the brief opens, would be to suggest "federalism is so withered and near death that States lack the power and right to go to federal court to test the validity of their own enactments when they conflict with federal law."

As for the constitutional arguments, Cuccinelli explains at great length what he says the founders understood the word "commerce" to mean when they drafted a constitution that gave Congress the power to regulate interstate commerce. He concludes that they would not have deemed failure to purchase health insurance as economic activity.

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