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

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.

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.

Cuccinelli said he and the other state attorneys general share legal strategy; he spoke with Florida Attorney General Bill McCollum (R) on Monday after Hudson's ruling.

"I hope this builds momentum as we go forward to the Supreme Court," Cuccinelli said. "It's a big thing to rule against a major piece of legislation if you're a federal judge. That's not a small matter."

An early loss, he acknowledged, could have encouraged other judges to shy from similar findings: "Momentum can be created in more than one direction."

The attention paid to Cuccinelli's suit has frustrated those who think the federal law will ultimately be upheld. Andrew Koppelman, a professor of law at Northwestern University, contended that Hudson's ruling conflicts with decades of judicial interpretation of Congress's power.

"These are manifestly silly legal arguments," he said. "The fact that a federal judge has embraced them doesn't make them any less silly."

Cuccinelli could still lose the case on appeal. His suit could be overtaken by another challenge on the way to the Supreme Court, where the law's constitutionality will probably be decided. Or it could be consolidated with one or more other suits.

But the early win brought quick political spoils for Cuccinelli, 42, who took office nearly a year ago and has become one of Virginia's most visible and controversial attorneys general.

For two straight days, he was all over the national news circuit. He received a note of thanks from former House speaker Newt Gingrich (R-Ga.).

Cuccinelli's political director, Noah Wall, would not say how much money was donated to the attorney general's political action committee in response to online advertising posted after the ruling.

Wall said the goal of the ads was not to raise money but to encourage supporters to sign a petition expressing support for the effort. By midday Tuesday, about 7,000 had signed up this week alone, joining 25,000 who had signed since the lawsuit was filed.

The online ads, which appeared on the Drudge Report among other Web spaces, drew criticism from those who think Cuccinelli is using the case to try to build a national political profile. He has said that he plans to run for reelection as attorney general in 2013 but has not ruled out a run for higher political office.

"It confirmed our suspicion that there are political motivations for the lawsuit," said Brian J. Moran, chairman of the Democratic Party of Virginia. "He's using our hard-earned Virginia taxpayer dollars to build his own reputation."

Cuccinelli said the advertising is designed to educate the public about his efforts. Those who sign the petition receive frequent, detailed updates from Cuccinelli about the suit's progress.

Over the summer, he conducted a lengthy presentation online about the case for supporters. He said his presentation is still being downloaded by the curious.

"There's a battle of ideas going on here," he said. "The formal battle is going on in court. There's also a battle for hearts and minds the citizenry. I'm trying to educate folks about why we're doing this."

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