A U.S. district court judge will decide within 30 days whether to dismiss Virginia’s lawsuit challenging the constitutionality of Obamacare. From the perspective of Virginia Attorney General Ken Cuccinelli, the stakes could not be higher. The fate of federalism, he believes, hangs in the balance.
“This case really goes to the foundations of this country,” Cuccinelli said last night in an exclusive interview. “It is truly a case about the outer limits of federal power under the Constitution. It’s really not a case about health care. It’s a case about liberty. … It is a sad state of affairs when all that stands between us and the end of federalism is one lawsuit.”
But that lawsuit is not over yet — and Cuccinelli said he is optimistic it won’t be over anytime soon.
Virginia’s lawsuit asserts President Obama’s health care law is unconstitutional because it mandates individuals to buy health insurance — a power that Cuccinelli argues is not enumerated in the Constitution. It also aims to protect a Virginia statute that says Virginians cannot be compelled to buy health insurance or to pay a penalty if they refuse insurance.
U.S. Health and Human Services Secretary Kathleen Sebelius asked the court to dismiss the lawsuit last month.
Yesterday morning, in the courtroom of Judge Henry Hudson of the U.S. Federal District Court for the Eastern District of Virginia, in front of an audience of interns and Virginia journalists, Cuccinelli argued against the federal government’s motion to dismiss.
“The United States had a hard time dealing with some of the issues that both we raised and the judge raised,” Cuccinelli said.
Among those issues was the question of whether the penalty imposed on anyone who ignores the individual mandate is a tax.
“You’ll recall that all of the Congressional supporters and the president insisted this was not a tax before it passed,” Cuccinelli said. “Well, their lawyers are now arguing that it is.”
In the written motion to dismiss, the federal government argued it has the power to mandate that citizens must be covered by health insurance or pay a civil penalty under the U.S. Constitution’s commerce clause.
“Their very, very — not surprisingly, but still shockingly — vast view of what the commerce clause allows is just stunning,” Cuccinelli said. “If [the individual mandate] represents something within the power of the commerce clause, it’s going to leave the federal government as barely a limited government at all because, by ordering Americans to buy products, you can accomplish an awful lot of policy goals.”
Cuccinelli thinks the clarity of his arguments — and the opacity of the federal government’s — came through at today’s hearing.
“On balance, I think that we were better off at the end of the day, and I’m cautiously optimistic — ever so cautiously — that we’ll be OK, by which I mean [Hudson] will deny the motion to dismiss and the case will go forward,” he said.
If Hudson does deny the motion to dismiss, a judge on October 18 will hear arguments on the motion for a summary judgment. Cuccinelli hopes the case will ultimately end up before the U.S. Supreme Court.
Twenty other attorneys general and the National Federation of Independent Business have also filed a separate suit against the government in opposition to Obamacare. Like Cuccinelli, the plaintiffs in that case believe their suit is about more than health care.
“Quite frankly, we view this as not just a health care issue anymore,” said Karen Harned of the NFIB. “I do not think it’s a stretch to say, if the government can require you to buy insurance simply because you’re alive, then, if they want a healthier society, they could require you to buy a gym membership. If they want a cleaner society, they could require you to buy a car every five years.”
Cuccinelli thinks this is the most important case he will ever argue.
“Every lawyer working on this case knows that it would be bordering on an astronomical miracle in terms of odds if we ever work on a case this important again in our entire careers,” he said.
For more about the Virginia lawsuit and the importance of federalism, check out Rob Bluey’s profile of the case and Cuccinelli in the Washington Examiner and Robert Moffit’s backgrounder, “Revitalizing Federalism: The High Road Back to Health Care Independence.”
