Health care: Suing the federal government

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Rosalind S. Helderman
Wasington Post Staff Writer
Wednesday, March 24, 2010; 1:00 PM

Not five minutes after President Obama signed health-care legislation into law Tuesday, top staff members for Virginia Attorney General Ken Cuccinelli made their way out of his office, court papers in hand and TV cameras in pursuit, and headed to Richmond's federal courthouse to sue to stop the measure. Cuccinelli claims the legislation's requirement that individuals buy health insurance exceeds the federal government's power to regulate interstate commerce under the U.S. Constitution.

Thirteen other state attorneys general also sought to stop the health-care law Tuesday, jointly suing in Florida.

Washington Post staff writer Rosalind S. Helderman was online Wedneday, March 24, at 1 p.m. ET to discuss the movement to stop health care reform.

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Rosalind S. Helderman: Hi, Rosalind here to talk about health care, efforts to sue the federal government and Virginia Attorney General Ken Cuccinelli. Welcome and I look forward to chatting with you all.

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Waverly, Tenn.: Does this mean now, that it is going to cost taxpayer money to go through with this lawsuit as well as tax payer money to defend it?

Rosalind S. Helderman: Yes, these suits mean exactly that. Governmental bodies, paid by taxpayers, will be on both sides of these cases. How much they will cost is another question. Here in Virginia, the attorney general's office has said they will do all the legal work inhouse and the cost will be limited to the $350 paid yesterday to file the case. However, the state's Democratic Party just announced they have filed a freedome of information request to learn how much attorney time is being spent on the case. They're argument is that time is money when it comes to lawyering and any time the office spends on this case will be time spent away from other priorities.

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Northern Virginia: I know you are one of our invaluable Virginia reporters, but see no other place to share a different health-care reform comment and hope you post it. I think Bart Stupak really did shape the finished bill's approach to abortion (more pro-life, more restrictive, also more positive steps such as adoption assistance, prenatal care, etc.) because his amendment in the House gave energy to the pro-life Democrats in the Senate. It's like volleying. His work didn't become law, but he moved the ball and got the issue to the Senate, which made more aggressive pro-life language there. And that language is now law.

My question is, will President Obama try to get this across at the executive order signing ceremony? I think Stupak deserves some support for what he did, even if I disagree with him.

Rosalind S. Helderman: Happy to post your comment. You're right--I cover Virginia, so I can give you no inside information about the president's executive order signing ceremony. But as an observer of the political process, I would be surprised if the president did not acknowledge Rep. Stupak in some way. In fact, I would be surprised if he is not in attendence.

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Arlington, Va.: Hi Rosalind, Are there any polls measuring the Virginia electorate's reaction to Cuccinelli's recent activities? I'd be very curious to know whether voters are having some buyer's remorse over this one. Also, is there a recall provision in Virginia law for the state AG? Thanks.

Rosalind S. Helderman: I have not seen any recent Virginia specific polls about the attorney general or about health care generally. We polled both before the November election--Cuccinelli was way ahead (not surprisingly, given the margin of his eventual victory.) And my recollection was the poll showed the health care reform bill then was a bit less popular in Virginia than nationally, but not substancially so. I would be eager to see fresher numbers.

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Downingtown, Pa.: Suppose the lawsuit ultimately prevails on the narrow issue of the requirement that individuals purchase health insurance. Although this would undermine the economics of forbidding insurance companies from considering pre-existing conditions, it would not per se reverse the new law on pre-existing conditions, would it? If I'm right, wouldn't a protracted mess result as Congress tries to figure out how to sort out the whole mess?

Rosalind S. Helderman: I suspect I may say this a few times during this chat, but I'm not a lawyer and this is a question that perhaps our friends in the legal community might want to weigh in on. However, I can tell you that the suit filed by Virginia specifically mentions that the Federal bill contains so "severability provision." Meaning that if a court struck down the individual mandate, it would have to strike down the entire law. Or, so says Virginia.

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Blacksburg, Va.: Is this lawsuit supported by Gov. Bob McDonnell and the General Assembly, and can either prevent Ken Cuccinelli from independently filing lawsuits such as this one?

Rosalind S. Helderman: Gov. McDonnell has issued a statement expressing strong concern with the health care law and supporting the attorney general's suit. They will actual join together this afternoon for a ceremonial signing ceremony for Virginia's new anti-individual mandate state law. The General Assembly is not now in session and has therefore not formally offered an opinion on the suit. However, it was the legislature that passed the bill that says it is illegal in Virginia to require a person to buy insurance. Five Democrats in the Democratic-held state senate crossed party lines to back the measure. I believe every Republican in both chambers voted "yay." But, no, they could not have blocked Cuccinelli even if they had wished to. As attorney general, Cuccinelli has the power to file suit on behalf of the commonwealth.

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Oakton, Va.: So, out of the blue the AG for Virginia decided a month ago that it should be unlawful to make health coverage mandatory in the Old Dominion. He had no knowledge that mandatory coverage might become Federal Law and therefore did not set himself up to be in the limelight, should HCR pass? Tell me another sleepy time story.

Rosalind S. Helderman: I don't think anyone has made this claim. In fact, when the legislature passed the bill, they were very open about the fact that they were doing so to send a message to Washington. And because they hoped it would give Cuccinelli legal standing to sue if the federal bill became law. He in fact has cited the law has giving Virginia unique standing in the issue. It will be for a judge to decide if that is the case.

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Richmond, Va.: Now that Virginia has passed the anti-health care law, what does that mean for all Virginians? We will be able to use the benefits of the new federal health-care bill or not?

Rosalind S. Helderman: Well, keep in mind the following. The Virginia law does not formally go into effect until July 1. And the federal insurance mandate, I believe, does not come into effect until 2014. I'd welcome input from lawyers or others who disagree, but I suspect for the time being the Virginia law will largely by a matter of legal philosophy to be debated in the courts.

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Fairfax, Va.: In your opinion, do the AGs who file suite really have a leg to stand on?

Rosalind S. Helderman: I'm seeing quite a number of questions that basically boil down to yours, Fairfax.

There's obviously a huge amount of writing being done on this question now, by legal experts from across the political spectrum. The short answer is that judges will have to decide. The longer answer is that most experts agree--to a greater or lesser degree--that the courts have given the federal government tremendous latitude to regulation all kinds of actions that impact commerce. However, the claim being made about the individual mandate is somewhat novel and so predicting court action is difficult. Many who believe the case will prevail point to a 1995 supreme court decision in the United States vs. Lopez. In that case, the court for the first time since the Great Depression put a limit on the federal governments ability to regulate interstate commerce, ruling that it exceeded federal power under the commerce clause to create gun-free school zones.

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Atlanta, Ga.: So now we will have to buy health insurance or pay a fine. What next? We will have to buy our next car from GM because of their government bailout? Will we have to buy a house instead of renting one since the government has bailed out the banks? I mean, what are the limits to congressional power? It seems like there aren't any.

Rosalind S. Helderman: Thank you for the comment. This, of course, is the argument advanced by Virginia's attorney general and others who believe the new law is unconstitutional.

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Upperville, Va.: Do the Attorney Generals have standing?

I mean nobody has been mandated to pay insurance, right? The mandates won't happen until at least 2014, right?

Can you sue for something that hasn't actually happened?

Rosalind S. Helderman: My understanding of the suit filed by the 13 attorneys general in Florida is that they claim standing essentially because of the costs the states will have to incur to expand Medicaid, as envisioned by the new law.

The claim in Virginia is a bit different. Here, General Cuccinelli is arguing the commonwealth has standing because the federal law creates an "immediate, actual controversy" by conflicting with the new state law against an individual mandate. He argues that though, as you say, the new mandate won't take effect for several years, the law "imposes immediate and continuing burdens on Virginia and its citizens."

Will that work? We'll have to wait for the rulings of the courts, starting with Judge Robert E. Payne of the Eastern District of Virginia. He was the judge assigned at random to this case. I think most people expect it will ultimately land with the Supremes, however.

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Arlington, Va.: What are the chances that this baker's dozen of cases will be consolidated into one case? And that the consoliated case will be tried in the rocket docket (E.D. Va.)? And by my reading of Article VI (supremacy clause), the Virginia statute forbidding the federal government to require Virginia residents to buy health insurance is unconstitutional.

Rosalind S. Helderman: This is a good question, and I don't really know the answer. I know Virginia's lawyers believe their claim is argued somewhat differently than the other attorneys general and do not believe the cases will be consolidated. But we will have to see.

And, yes, during the legislative debate over the state law, there were many opponents who argued the Virginia statute would be unconstitutional because of the supremacy clause. But, again, it will be an issue for the courts.

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Washington, D.C.: Is there any way that these lawsuits backfire and end up overturning Medicare?

Rosalind S. Helderman: I've read some discussions of this point and I suppose anything is possible. It would seem to me to be highly unlikely, however. For all that judges say about their ability to rule narrowly on the law as they interpret it, without regard to real world consequences, I find it difficult to believe any judge would be eager to force that kind of monumental societal change from the bench.

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Dunn Loring, Va.: Much has been made that people voted for Obama knowing that he intended to reform health care. Can't the same be said about Ken, that Virginia voters knew his positions and opposition to many proposed federal policies and voted for him anyway? If so, aren't Virginia Democrats just being sore losers?

Rosalind S. Helderman: Well, it's for the voters of Virginia to decide if anyone's being a sore loser in all of this. But you're other point is well taken. Ken Cuccinelli has never been shy with his opinion nor is he doing anything now that he did not say he would during the campaign. Voters did indeed support him and his platform. Of course, there were plenty of Virginians who did not pay close attention to the race (he was running third on the ballot, after all) or did not vote in the election.

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Harrisburg, Pa.: I see this issue like a child who wants a baseball. Instead of getting a baseball, his parents buy him a Lego set. The child stares at the complexity of the Lego set and wonders what to do with all the pieces. The child wants to play baseball and is not happy. Yet, the worst part is not the time spent trying to figure out how all the Legos are put together, but the mean uncle who walks in and wants to take away the Lego set.

Another analogy is Alf Landon campaigning by promising to repeal that confusing and fearful Social Security. How did that work out for you, Alf?

In sum, isn't there a potential greater risk for those who want to take away something given to voters than for those who initially opposed giving it to voters?

Rosalind S. Helderman: This is a political point and it goes to whether it is wise of Republicans to be lobbying so hard agains the bill. Time will tell. But I do think the democrats will now present the argument just like you have done--that efforts to repeal the law or have it declared unconstitutional will be taking something from people. As an example, I just attended a Democratic conference in Richmond featuring a woman who said that because of the law, her young adult daughters will now be able to stay on her health insurance until they turn 26. They have preexisting conditions and she had been worried they would not be able to get insurance. The Dems gave her the microphone to essentially ask why Cuccinelli wants to take this away from her.

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WDC: Since these AG and his ilk were so upset that people might in some indirect way pay any taxes that might be used for an abortion, can citizens of the suing states who object to the waste of taxpayer money caused by the legal challenge to HCR withhold their "share" of that in state taxes?

Rosalind S. Helderman: I suspect you intended this question to be rhetorical. But if not, no, I don't think the government would look kindly at you withholding your tax dollars over this.

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Alexandria, Va.: When I reached the age of 65, I had to get Medicare Part A. If I didn't buy Medicare Part B, I was penalized 10 percent every year that I didn't take it even though I didn't want it (and it costs a lot of money each month). Isn't that sort of the same thing as the mandatory portion of the new health bill? If so, then we do have to pay for things we don't necessarily need or want now. I am upset that Virginia's attorney general is going to spend my money on a losing cause when we need pot holes filled on my streets!

Rosalind S. Helderman: Thank you for the comment.

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Republicans' Jobs Plan?: Given the latest USA TODAY/Gallup Poll showing more respondents said it was "a good thing" rather than a bad one that Congress passed the healthcare reform bill (49 percent vs. 40 percent) and the uncertainty or low probability for success, aren't Republican lawsuits against the federal government merely billing opportunities for attorneys? Maybe these lawsuits are part of the Republicans' plan to create jobs (for attorneys and their staffs). With constraints on state budgets and resources, aren't there are better ways to spend taxpayer dollars? Being passionate about politics is understandable but in suing the federal government Republicans appear to be very sore losers, motivated by spite and anger and not good stewards of other peoples' money.

Rosalind S. Helderman: Thank you for the comment. I posted the previous one suggesting Democrats are sore losers. And now this one that Republicans are sore losers. No one much likes to lose, do they?

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Denver, Colo.: Why can they not take this health-care issue to the people and see if this is what we want or not?

Rosalind S. Helderman: A federal refendum, huh? It doesn't really work that way. But of course, we'll have an election in November. Every member of the house and a third of the senate will stand for reelection and the voters will have a chance to give their say then.

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Arlington, Va.: No question, just a comment, after researching a prior question. Virginia has an unusual recall/trial system for removing elected officials. Under Virginia law, if enough registered voters sign a recall petition (in this case, it would take about 200,000 signatures), a circuit court can remove an elected official for "neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office." If Cuccinelli keeps it up, he may be getting close to that line.

Rosalind S. Helderman: Thank you for this comment. I had been told by various people that Virginia did not have a recall provision. Given the number of people who have asked about it, it's been on my list to research and confirm. I'll have to look into it further but I appreciate your input.

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What next?: The answer is simple. If you pose a danger to public safety like polluters and the uninsured, the government can require you to hire a private company to reduce the danger.

Rosalind S. Helderman: Thank you for the comment.

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D.C.: What happens when the Virgnia AG loses and is brought up on disciplinary charges before the Virginia Bar for filing frivolous claims? Can the Virginia voters recall him? Gotta love fiscal conservatives who are willing to waste our tax dollars to promote their ideology rather then follow the Constitution and the outcomes of elections.

Rosalind S. Helderman: Please see a past question for a discussion of recall and whether it is a possibility. Discplinary charges seems a bit far fetched to me. He may win, he may lose, but as attorney general he gets to decide when the state should get involved in litigation. He would argue that he is merely defending the new state law passed by a majority of state legislators.

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Arlington, Va. (home of GMU Law): The argument is that the new federal law conflicts with a Virginia law. Has Cuccinelli ever heard of the Supremacy Clause? I went to the same law school he did, I know that taught it there.

Rosalind S. Helderman: Thank you for the comment. By any chance, were you at Cuccinelli's speech to GMU law school students and alumni yesterday? It was closed to media. I've heard from a few students and others who were there. Please let us know what you heard about if you were there.

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East Lansing, Mich.: RE: Upperville, Va.'s point

But even with Medicaid payments, doesn't the law have to be enforced before it's challenged in the courts? I mean they filed suit within 5 minutes of the signing ceremony. None of new laws have gone into effect, right?

Rosalind S. Helderman: An interesting point. Lawyers?

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"imposes immediate and continuing burdens on Virginia and its citizens." : Could you explain what these are?

Rosalind S. Helderman: The complaint does not spell them out. That issue could well be argued as the court looks to decide if Virginia truly has standing. I would imagine one argument Cuccinelli might make would be similar to that put forward by the 13 other attorneys general, that the law requires an expansion of Medicaid that will cost the state money.

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Fredericksburg, Va.: As an African-American, I cringe a bit whenever I hear "state rights" because if you really believed in state rights, I and all my family would still be slaves.

But my question is something I've wondered about. Do Republicans know that "state rights" has a very negative meaning with the black community and hurts them in their outreach to get more voters from within that community?

Rosalind S. Helderman: I find this to be a fascinating question--one I've been talking to people about in recent days. I suspect one reason why there is so much revolution-era imagery associated with the tea party movement is that its organizers are purposely trying to link their states rights arguments to an earlier time in American history--as opposed to the eras with which it has been more commonly associated, the Civil War and the civil rights era. They are well aware of the pain and controversy of those later eras.

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Steling, Va: SUPREMACY CLAUSE

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." U.S. Const. art. VI, Paragraph 2

Note that the Laws must be made in Pursuance to the constitution to be supreme.

Rosalind S. Helderman: Thanks for this. Yes, I should have mentioned that the counter argument to those who say the Virginia law is superceded by federal law is that state law can only be superceded if the federal law is constitutional.

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Colorado: I think what we need to all remember is our officials can be voted out if we do not like what they have done.

Secondly, this government is still for the people, by the people and I think that we the people have come to [be] used to blaming the politican instead of getting involved and governing ourselves.

Rosalind S. Helderman: Thank you for this. Yes, it's the beauty of the Democratic system. If people don't like what their elected officials do, they have the ability to vote them out of office.

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Vienna, Va.: Isn't it elementary that state law defers to federal? Sort of like in the constution?

Rosalind S. Helderman: Please see our last question on this topic.

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Philadelphia, Pa.: So what happens while the lawsuit is in process? Does the legislation still stand or does it go on hold until this is resolved.

Rosalind S. Helderman: I don't think the legislation stands still unless a court were to issue some kind of injunction.

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College Park, Md.: Who does Virginia's attorney general and the other ones filling lawsuits rationalize Massachusetts having an individual mandate for insurance?

I saw Nebraska's attorney general on cable news and he said it was different because states can do it, but it they saying that it's against "freedom and liberty," does it really matter if it's the federal, state or municipal government that's doing it?

Rosalind S. Helderman: You know, I haven't heard them them address this interesting question and I did not see the interview with Nebraska's attorney general. Does anyone know if there were lawsuits about Massachusetts mandate and how they were settled?

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Tort Reform: Republicans talk a lot about tort reform and eliminating frivolous lawsuits as essential elements of health-care reform. If the losing party had to pay all court costs including attorney fees for the prevailing party, how many Republican attorneys general do you feel would sue the federal government over the health-care reform bill? Close or equal to zero would you say?

Rosalind S. Helderman: I believe Attorney General Cuccinelli beleives strongly in his suit and in its liklihood of success. I have no doubt he would have filed his complaint yesterday, even under the conditions you describe.

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State flexibility: If HCR is ruled unconstitutional on the federal level (this seems highly unlikely to me, but play along for a second), what does that mean for states like Massachusetts and Hawaii that have compulsory health care?

Rosalind S. Helderman: Again, to the lawyers in the crowd? I assume they would not be affected, because the federal suits are tailored pretty narrowly at the idea that the the federal government does not have the power to mandate coverage.

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not the ideal comparison, but: it's been bandied about, so why not -- car insurance. Anyone who has a car is forced by the government to buy it or pay a penalty if they don't. Since everyone (EVERYONE) will at some point need health care, they should have to get health insurance.

Where's the disconnect?

Rosalind S. Helderman: Yes, this is the argument made mostly frequently in response to the arguments against the individual mandate. The standard counter to this argument is that government mandates that you buy car insurance, but only if you want to legally drive. If you choose not to drive, you don't have to buy insurance. There will be no choice but to buy insurance or pay a fee under the new law.

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Woburn, Mass.: I think the point about elections is good one. President Obama and the Democratic Party have made it very clear in all the elections of the past decade or so that they intended to try and pass universal health care if they were able to. It could not have been clearer. Our government works by elections and representatives, not by opinion polls or Faux News Commentators. So the Republicans should allow the process to finish in the Senate and put it to the people in the next election to see if they have changed their mind abut reigning in insurance companies and covering the uninsured. Nothing in the bill will have an effect before then, so LET THE PEOPLE DECIDE.

Rosalind S. Helderman: Thank you for your thoughts. One of the things that I find so interesting about this whole debate is how convinced both sides are that most Americans are on their side. There are of course polls on the issue. But because the issue is so complicated, the polls on this one are more all over the map than on most issues.

A colleague who was on a radio program with callers the other day told me she got two questions in a row. One was from a man who said, "I don't understand this. I support this bill and I can't find a single person who does not agree with me." The very next caller said, "I don't get it. I oppose this and I can't find a single person who doesn't agree with me."

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Rosalind S. Helderman: It looks like our hour is up. Thank you everyone for joining me and for all of your great questions.

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