U.S. judge allows Va. health-care lawsuit to move ahead

At 42, Virginia's Ken Cuccinelli stands as one of the most high-profile, active attorneys general in the state's history.
By Rosalind S. Helderman
Washington Post Staff Writer
Tuesday, August 3, 2010

RICHMOND -- A federal judge refused Monday to dismiss a Virginia lawsuit challenging the nation's sweeping new health-care law, indicating the law represents a novel extension of Congress's constitutional authority that should be tested in court and handing the law's foes an early legal victory.

U.S. District Judge Henry E. Hudson rejected arguments from Obama administration lawyers that Virginia has no standing to sue over the law and would have no chance of ultimately prevailing.

Virginia's suit, filed by Republican Attorney General Ken Cuccinelli II, argues that Congress overstepped its constitutional authority with a provision mandating that Americans buy health insurance by 2014 or pay a fine.

(Ken Cuccinelli: Rise of the confounding conservative)

The ruling allows the suit to proceed to a full hearing on the legal arguments of the issue, to be held in the same Richmond courtroom Oct. 18. If Hudson had dismissed the suit, his ruling would have provided powerful ammunition for the law's supporters, who believe such suits are frivolous political exercises. Hudson was appointed by President George W. Bush in 2002.

"This is a convergence of politics and law," said Jonathan Turley, professor of law at George Washington University. "The Obama administration had hoped they could get a quick resolution of this issue to avoid arguments before the November election. Now, you're likely to have significant litigation shortly before the election."

The Virginia suit is one of two major state-level, Republican-led efforts to kill the federal health-care law in court. A suit filed jointly by 20 states in Florida also contests the law's constitutionality and says it infringes on the sovereignty of states by requiring them to expand their Medicaid programs. A federal judge in Florida is weighing a similar motion to dismiss that suit.

The law's opponents characterized Monday's ruling as a major setback for the Obama administration.

Supporters downplayed Hudson's opinion Monday as merely a preliminary and procedural step in a case that will probably last several years and ultimately be decided by the Supreme Court.

Hudson found that Virginia's challenge is valid because Cuccinelli's suit was designed to defend a newly enacted state statute that made it illegal to require state residents to buy health insurance. He wrote that the case involves issues of national significance with little precedent, which need a full hearing. He also said there are few precedents for the case and suggested the health-insurance mandate would push the bounds of Congress's authority to regulate interstate commerce and adopt laws necessary and proper for the general welfare.

"Unquestionably, this regulation radically changes the landscape of health insurance coverage in America," Hudson wrote in the 32-page opinion. "The Commerce Clause aspect of this debate raises issues of national significance. The position of the parties are widely divergent and at times novel. The guiding precedent is information but inconclusive. Never before has the Commerce Clause and the associated Necessary and Proper clause been extended this far."

Virginia Gov. Robert F. McDonnell (R) called Cuccinelli's lawsuit "meritorious and constitutionally correct" and applauded the opinion. "The federal government has exceeded its powers, powers of allegedly limited government, in this matter," Cuccinelli said. "We hope the courts ultimately will rein that in and return the balance of power between states and the federal authority."

The Obama administration responded that it is confident the law will be found constitutional -- and said challenges are an attempt to settle a political dispute. The administration emphasized that the insurance mandate is critical to the law's interlocking reforms, including popular measures such as requiring insurers to cover everyone regardless of preexisting health conditions.

"That just means there will be a full hearing on the arguments," Health and Human Services Secretary Kathleen Sebelius said in a conference call with reporters. "We remain confident that the case is solid and there is full constitutional backing for the passing of the Affordable Care Act."

Hudson heard two hours of oral arguments in July. Cuccinelli's legal team argued that a person who has chosen not to buy insurance is not engaged in economic activity and, therefore, Congress cannot regulate his actions as interstate commerce. The administration countered that an insured person will eventually require health care. Going without health insurance is not inactivity -- it's simply choosing not to pay for health care, a decision that shifts a $43 billion-a-year burden from the uninsured to the insured, their lawyers contended.

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