Va. begins courtroom assault on federal health-care overhaul

By Rosalind S. Helderman
Washington Post Staff Writer
Friday, July 2, 2010; B01

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.

"If I think something violates the U.S. Constitution and I sit on my hands, then I am abandoning my oath of office," Cuccinelli said at a news conference after the hearing.

As a first hurdle, Virginia must convince the judge that the state has standing to sue. Acting on behalf of the Obama administration, Deputy Attorney General Ian Heath Gershengorn argued that a state suit is not appropriate because the provision of the law that Cuccinelli has challenged -- the requirement that people buy insurance or pay a fine -- affects individuals. At least 15 other suits have been filed by individuals or groups challenging the same provision.

Getchell responded that Virginia's statute prohibiting the mandate means that the state has a sovereign interest to protect.

Assuming the judge considers the suit valid, he will weigh a more central question: whether there is reason to think that Congress exceeded its constitutional authority by commanding individuals to buy health insurance. At its core, the legal debate will turn on whether a person who has chosen not to buy insurance is engaged in economic activity that can be regulated by Congress as interstate commerce.

Getchell argued that a person who has chosen to go without insurance is not engaging in economic activity and cannot be forced into the insurance marketplace. "No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce," he said.

Gershengorn countered that an uninsured person will eventually require health care. Going without health insurance is not inactivity, he said. It's just choosing not to pay for health care, a decision that shifts a $43 billion-a-year burden from the uninsured to the insured.

"Everybody uses health services." he said. "And, more importantly, you cannot guarantee that you will opt out. You cannot guarantee you won't be hit by a bus."

Debate among scholars

There is considerable debate among legal scholars about how the courts will rule on that point. For decades after the New Deal, courts gave Congress virtually unlimited authority to regulate economic activity under the legislature's constitutional power over interstate commerce. But in recent years, the Supreme Court has twice placed limits on that power.

Gershengorn also said the power of Congress to tax citizens gives it the authority to levy a fine against those who choose not to buy insurance. Cuccinelli later said that argument undermined Obama's long-held position that the federal law imposes no new taxes on the middle class.

Hudson, a 2002 appointee of then-President George W. Bush, asked probing questions of both sides, but at times he appeared to express sympathy with Virginia's case.

"Give me an example. Give me an example," Hudson demanded of Gershengorn at one point, asking him to cite a time when individuals had been required by the federal government to buy a private product. "Where?"

Gershengorn responded that health care is unlike other products because everyone eventually consumes it. He said Congress was merely trying to regulate how it is paid for.

Hudson has said that if he denies the motion to dismiss the suit, Kenneth T. Cuccinelli II v. Kathleen Sebelius, he will hear a motion for summary judgment Oct. 18. Regardless of the outcome at the District Court level, the case will almost certainly be appealed to the U.S. Court of Appeals for the 4th Circuit and then to the Supreme Court.

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