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Va. Attorney General Cuccinelli's strategy looks good in light of ruling

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By Rosalind S. Helderman
Washington Post Staff Writer
Tuesday, December 14, 2010; 10:53 PM

RICHMOND - Virginia's go-it-alone legal strategy to challenge the nation's sweeping federal health-care overhaul - once questioned by both advocates and some opponents of the law - seems to be paying off for state Attorney General Ken T. Cuccinelli II after Monday's court ruling, in his favor, that a key provision of the law is unconstitutional.

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When Cuccinelli (R) filed suit in March against the federal law - rather than signing on to one filed jointly in Florida by 20 other attorneys general - Democrats said it was an exercise in grandstanding for political gain.

In the months since, that criticism has grown as Cuccinelli has made the suit central to his fundraising efforts, including ads posted online Monday about the legal victory.

Even some of the law's foes thought a separate suit was risky. Cuccinelli had filed in Virginia's Eastern District, known for its speed. A quick defeat could have convinced the public that his case and others like it were bound for defeat, and undermined the larger challenge in Florida.

Instead, the opposite has occurred. U.S. District Court Judge Henry E. Hudson handed Cuccinelli a victory Monday and declared a section of the law requiring people to obtain health insurance is unconstitutional.

Hudson's decision is the first time a federal judge has ruled a portion of the law unconstitutional, and it came three days before a Florida judge is scheduled to hear oral arguments in the larger lawsuit. The decision also conflicts with two previous rulings by federal judges upholding the same provision of the law in cases filed by individuals and institutions.

Advocates of the law said the other rulings indicate that Hudson's decision is an outlier that will be overturned on appeal. They note Hudson has allowed the law's implementation to proceed, so the ruling will have little practical impact.

But his decision has undermined those who contend that constitutional challenges to the law are frivolous.

"There's no question that this was a gamble in terms of how the litigation would have been perceived if he's received the third strike in a row," said Jonathan Turley, professor of law at the George Washington University Law School. "It's certainly a gamble that's paid off."

Cuccinelli has maintained all along that filing his own challenge made more sense than signing on to the Florida effort.

The Virginia General Assembly had passed a law in March that made it illegal to require state residents to carry health insurance. The conflict between the state statute and the federal law gave Virginia unique standing to sue, he argued.

"You just don't go to other states to protect your own laws," Cuccinelli said in an interview Tuesday.


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