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Cuccinelli tells federal judge Virginia has standing, merit on its side in heatlh-care suit

Rosalind Helderman

Attorney General Ken Cuccinelli told a federal judge Monday that he should deny a request by the Obama administration to dismiss Cuccinelli's suit challenging the constitutionality of the federal health-care law.

In a 41-page memorandum filed with the Eastern District of Virginia, attorneys for the Virginia attorney general argue that federal lawyers acting on behalf of Secretary of Health and Human Services Kathleen Sebelius were off base when they argued that Virginia has no standing to sue over the law, and that Congress had the right to mandate that individuals purchase health insurance under its constitutional right to regulate interstate trade.

At turns, the brief delves deeply into intricate legal arguments and then offers plain-spoken and harsh critiques of the political process that led to Congress' adoption of the health-care law. Of the health-care law, Virginia's lawyers write, "Cobbled together in secret, [it] was passed by the Senate, largely or totally unread, on a party line vote, literally in the dead of night on Christmas Eve, against the will of the people as measured by most polls; a product of such florid deal-making as to generate scornful popular terms such as 'the Louisiana Purchase' and 'the Cornhusker Kickback.' "

They argue that Virginia does have standing to sue because of a law passed by the General Assembly (they note approvingly with more bipartisan support in Richmond than the health-care bill held in Washington) that makes it illegal to require individuals to buy health insurance. Virginia's law need not be supplanted by the federal law, as Obama's lawyers had argued, if the federal law is deemed unconstitutional, they write.

To imply otherwise, the brief opens, would be to suggest "federalism is so withered and near death that States lack the power and right to go to federal court to test the validity of their own enactments when they conflict with federal law. The Supreme Court has never said this but has often said the opposite."

As for the constitutional arguments, Cuccinelli explains at great length what the Founders understood the word "commerce" to mean when they drafted a constitution that gave the Congress the right to regulate interstate commerce. He concludes that they would not have deemed failure to purchase health insurance as economic activity.

"If commerce comprehends a decision not to engage in economic activity, and the command to purchase health insurance or pay a penalty is valid, Congress has a power under the Commerce Clause indistinguishable from a national police power," Virginia's lawyers write. "Even in the modern regulatory state, a citizen should have a right to escape commercial regulation by not acting commercially."

Judge Henry Hudson has scheduled oral arguments on the government's motion to dismiss the case for July 1.

By Rosalind Helderman  |  June 7, 2010; 5:19 PM ET
Categories:  Ken Cuccinelli , Rosalind Helderman  
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