Va. begins courtroom assault on federal health-care overhaul

Virginia Attorney General Ken Cuccinelli II is pursuing a high-risk, high-reward strategy.
Virginia Attorney General Ken Cuccinelli II is pursuing a high-risk, high-reward strategy. (Alexa Welch Edlund/associated Press)
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By Rosalind S. Helderman
Washington Post Staff Writer
Friday, July 2, 2010

RICHMOND -- The legal challenge to the nation's new health-care law was launched Thursday in a courtroom in Richmond, where the office of Virginia Attorney General Ken Cuccinelli II argued that the measure is an unprecedented overreach by Washington that violates the founders' intention of a limited federal government.

Arguing the case for Virginia, Solicitor General E. Duncan Getchell Jr. told a judge that it would be "unprecedented," "ahistorical" and "radical" for the federal government to require an individual to buy a private product -- in this case, health insurance.

In front of a packed courtroom -- with spectators overflowing into a second room and supporters of the federal law demonstrating outside -- attorneys for the Obama administration responded that the Virginia suit has no merit and should be tossed out of court. They said the law's mandate that Americans buy health insurance was well within Congress's constitutional power.

District Court Judge Henry E. Hudson said he will decide within 30 days whether to allow the case to proceed.

The hearing was the first skirmish in a legal war over the federal health-care overhaul that is not likely to be settled until it makes its way to the Supreme Court.

The Virginia suit is one of two major state-level, Republican-led efforts to kill the federal health-care law in court. It is a fast-attack assault that narrowly contends that Congress overstepped its authority by requiring individuals to buy health insurance or face a fine. Attorneys general in 20 other states have joined a suit filed in Florida that adds the assertion that the federal law encroaches on the sovereignty of the states by requiring them to expand Medicaid programs.

Cuccinelli has said his suit was necessitated by a Virginia statute that went into effect Thursday making it illegal to force residents to buy health insurance. The measure was passed by legislators explicitly to clash with the federal law, which imposes a fine on people who don't buy insurance by 2014.

'Rocket docket'

By filing in the Eastern District of Virginia, known for its speedy "rocket docket," Cuccinelli has ensured that Virginia's case will be the first in the nation to be heard.

It is a high-risk, high-reward strategy for the controversial 41-year old Republican attorney general, because he alone will probably own the case's first legal verdict. A judge is not scheduled to begin hearing oral arguments in the Florida case until Sept. 14.

"The fact is that if he wins, he'll gets all the accolades from the conservatives," said Robert D. Holsworth, a blogger and Virginia political expert. "If he loses, he will not only take a hit from the Democrats who will say this was a waste of time but there will be a number of conservatives nationally who believe the other case is the stronger suit, and they'll be annoyed."

For his part, Cuccinelli has seemed comfortable assuming a role as a national spokesman against the law. He appears often on television to argue his case and recently hosted an hour-long online seminar for more than 2,000 supporters to explain it.

He attended Thursday's hearing but sat silently with other attorneys from his office, leaving oral arguments to Getchell, an appellate court expert. Cuccinelli has said he lured Getchell to the attorney general's office with this suit in mind. Cuccinelli's wife and two of his seven children attended the hearing as well.

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