Time for the Supreme Court to weigh in on the health-care law

By Ken Cuccinelli
Thursday, December 16, 2010

This week, the U.S. District Court for the Eastern District of Virginia declared the federal health insurance mandate and its penalty unconstitutional. The next day, Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius published an op-ed in The Post ["A health reform for everyone"], arguing that the federal government is justified in claiming the power to order citizens to purchase health insurance because that allows Congress to address certain issues, such as the denial of insurance based on preexisting conditions.

Even if one assumes that Holder and Sebelius have the best of intentions, their op-ed focused on a policy argument, not a legal one. No matter how noble an idea is, it must be constitutionally sound before it can be implemented. The judge correctly found that the mandate and penalty fail this basic test.

The Supreme Court explained in June in its ruling in Free Enterprise Fund v. Public Company Accounting Oversight Board that, while every generation perceives that it faces urgent problems, permitting policy desires to trump the Constitution would usher in far greater evils than those the government is seeking to cure. No one, including me, is against affordable health care. But the Virginia lawsuit is not just about health care. It is about protecting our liberty.

The health-care law sacrifices the liberty of Americans and abandons the Constitution that protects that liberty. The power Congress claims it has to create the mandate and penalty has no principled limits: If the federal government can order a citizen to purchase a private product such as health insurance in the name of public policy, it can order us to buy anything.

The fact that the mandate and penalty were declared unconstitutional should surprise no one. Any other result would mean that the federal government had ceased being a government of limited, enumerated powers, and it could exercise control over any aspect of American life - what lawyers refer to as the "police power." The Supreme Court has never endorsed such an outcome and made clear in its Morrison decision in 2000 that it has always "rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power." That is exactly what Congress attempted to do here and why it failed.

Regardless of whether one agrees with the court's ruling, two things are obvious. First, as even Holder and Sebelius have conceded, the insurance provisions of the health legislation cannot work without the insurance mandate and its penalty. Second, the question of the law's constitutionality can be conclusively resolved only in the U.S. Supreme Court.

Unfortunately, the Justice Department appears to wish to delay that resolution for as long as possible. On the same day The Post published the Holder and Sebelius op-ed, Assistant Attorney General Tony West faxed me a letter conveying the Justice Department's decision not to join Virginia in seeking to fast-track this case by skipping the appeals court and taking it directly to the Supreme Court.

There is simply too much at stake to allow final resolution to be unnecessarily delayed. There is financial uncertainty for state governments, employers and citizens inherent in not knowing whether the law will still exist two years from now. Companies with no idea about what to project for future employee insurance costs are reluctant to add employees, and states are already spending billions to begin complying with a law that may ultimately be struck down. It is irresponsible to allow this uncertainty to linger when Supreme Court rules allow for immediate review of cases that, like this one, are of imperative public importance.

The unwillingness of the Justice Department to attempt to resolve this as quickly as possible is puzzling. The issues in the case are purely legal and have been developed with exceptional thoroughness by the district court, the parties and numerous friend-of-the-court briefs, including one by former U.S. attorneys general Edwin Meese, Richard Thornburgh and William Barr. If Holder and Sebelius are as confident as they say that they will win in the Supreme Court, what reason is there for not getting this promptly resolved for the American people?

Both supporters and opponents of the law have already issued calls for expedited review in the Supreme Court. The president and his attorney general should do so as well.

The writer is attorney general of Virginia.

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