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Win or lose this summer, Cuccinelli says his health-care suit headed to D.C.

Rosalind Helderman

Attorney General Ken Cuccinelli II (R) says he believes Virginia has "a better than even" chance of getting a win at the initial district court level in its suit against the federal government over health-care reform. A judicial declaration that the health-care law is unconstitutional would have national repercussions.

"Just statistically, we're most likely to survive standing, and then we have a better than even chance of winning on the merits," he said in an interview Tuesday, a day after the federal government filed a response to his suit. "I wouldn't go farther than that. I wish I could."

At the same time, a loss would strengthen the hand of those who have argued that Cuccinelli's suit is frivolous with little chance of success, and, for that reason, Cuccinelli argues his suit is a marathon that will undoubtedly be decided by the Supreme Court. Winning along the way to Washington would be more fun than losing, but not a necessity.

"Nobody likes to lose, but we're in this for the long haul," he said. "We understand this is going to be decided ultimately by the Supreme Court, and that's the course we're on, regardless of what happens in the district court or the 4th Circuit. ...You take them one at a time -- you don't think about the next drive until you finish your putt."

Cuccinelli said he realizes he faces the burden of proof in convincing judges the law is unconstitutional. But the federal government faces "the burden of persuasion."

"The federal government has a significant burden in convincing judges they can order people to do something, to go buy something, under the guise of regulating commerce, when that has never ever ever been done before in the history of the United States," he said.

The government argued in its motion Monday that those who choose not to buy health insurance impact interstate trade when they are sick or are injured and show up for care, which then raises prices for all other health care users.

Providing a sneak peak of Virginia's next filing, Cuccinelli said he believed the flaw in that argument was the assumption that those without insurance will, without a doubt, ultimately seek health care. "They're arguing a contingency as a certainty," he said. "That is a very presumptuous statement and an unproven one, even if there is testimony before Congress of it. And perhaps an irrelevent one, because they are working their way through a chain of inferences and it's not clear that the law will allow them to do that, to support the jurisdiction under the constitution for this bill."

And he pushed back against the idea that Virginia lacks standing to sue in the case, an issue the federal government spent much of its memo in support of a motion to dismiss dissecting. "

Cuccinelli said he could not say how much of his staff's time has been devoted to writing Virginia's next filing in the suit--due June 7 but estimated it likely reached "scores of hours, for sure."

This is an important point because Cuccinelli has so far said the suit has cost the state only $350, the court filing fee, and declined to break down how much the state is paying to staff working the issue.

By Rosalind Helderman  |  May 26, 2010; 1:28 PM ET
Categories:  Ken Cuccinelli , Rosalind Helderman  
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Comments

Ken's our man! Supporting this suit will be money well spent. I'm happy to have my tax dollars go for this worthwhile mission.
People such as Ken Cuccinelli deserve our thanks and our support for standing up to dictators.

Posted by: ErikKengaard | May 26, 2010 4:13 PM | Report abuse

Yes, Erik, I'd much prefer my money go to pay for any Tom, Dick or Harry who decides he doesn't want to pay the "dictators" in DC for health insurance, who crashes his truck into a family of 5, all of whom have no health insurance -- costing me hundreds of thousands of dollars in medical costs.

THAT'S the RESPONSIBLE and CONSTITUTIONAL way to handle these things! Go Ken! Go freedom! Freedom from responsibility.

Really, these Tenthers need to have their heads examined. But I hope their insurance covers it because I certainly don't want to pay for it!

Posted by: rebeccajm | May 26, 2010 4:35 PM | Report abuse

As I predicted when Cuccinelli filed suit challenging the constitutionality of Obamacare, the Obama administration has moved to dismiss it. In its motion, the government argues that Cuccinelli lacks standing to challenge the law and further that the law is a permissible exercise of the federal government's power to regulate interstate commerce.

The suit is a complete waste of taxpayer money. I don't necessarily agree with the government's argument on standing, but the government is dead-on right when it comes to the constitutionality of the trillion dollar welfare blunder. Here's what gets me though: "Cuccinelli has so far said the suit has cost the state only $350, the court filing fee, and declined to break down how much the state is paying to staff working the issue." Believe me, the AGs staff is devoting a ton of time to this, which is exactly why Cuccinelli won't even hazard a guess. It would be shocking.

Cuccinelli’s priorities, simply put, are woefully misplaced. This is just one of his many errors in judgment (or maybe they aren’t errors and just his political grandstanding).

www.lloydtheidiot.com

Posted by: LloydtheIdiot | May 27, 2010 9:26 AM | Report abuse

Who is investigating the taxpayer waste generated by Ken Cuccinelli for pursuing frivolous lawsuits?

Posted by: Anglo_Rider | May 27, 2010 2:29 PM | Report abuse

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