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Former GOP congressman Davis calls Cuccinelli health care suit 'uphill case'

Rosalind Helderman

Virginia Attorney General Ken Cuccinelli believes his suit against the federal health care law has a "better than even" chance of success, but there are plenty of doubters.

On NewsTalk with Bruce DePuyt Thursday, former Rep. Tom Davis (R) said he believed the "precedents are there" to support the law's constitutionality. "He's got an uphill case," Davis said.

Less surprisingly, U.S. Rep. Jim Moran (D) called Cuccinelli's legal interpretation "nuts."

"He's a radical in terms of his interpretation of the constitution. There's just so much precedent for doing the kinds of things that are entailed in health care reform," Moran said.

But Cuccinelli does have some legal scholars on his side.

We spoke to George Washington University Law School professor Jonathan Turley about the case the other day. Cuccinelli often cites Turley's comments in his speeches about the suit because Turley is a civil libertarian who was critical of the Bush administration's detainee and torture policies and is not perceived as a conservative.

Turley has been critical of legal colleagues who have dismissed the legitimacy of Cuccinelli's arguments out of hand. He said it is unprecedented for Congress to require citizens to purchase a private product. If the courts believe the mandate can be authorized by Congress' power to regulate interstate commerce, it would mean there are virtually no limits on federal power, he says.

"For states rights advocates, this moment feels like the final stand at the Alamo," he said. "In my view, there would be little left of federalism if this law prevails."

There are plenty of legal scholars who disagree, however. Gillian E. Metzger, a Columbia Law School professor who joined with several other academics to file a friend of the court brief supporting the Obama administration's motion to dismiss the Virginia case, said those who choose not to buy insurance aren't sitting out the health care market. They instead pay for care out of pocket or the costs of their care is absorbed by the rest of the system when show up in emergency rooms without insurance in need of care.

"These suits shouldn't succeed under existing doctrine -- they're really political suits," she said. "The decision to forego health insurance is not inaction. It's a decision to spend your money on health care in a different ways."

By Rosalind Helderman  |  July 2, 2010; 9:29 AM ET
Categories:  James P. Moran Jr. , Ken Cuccinelli , Rosalind Helderman , Thomas M. Davis III  
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Considering the comment of the Columbia U. professor (and by the way there's a typo in her last comment)...

It's not really the "health care market" that someone is staying out of by not purchasing health insurance. It's the health care *insurance* market. When those w/o insurance go a year without seeing a doctor, they stayed out of the health care market, didn't they?

Further, just because someone w/o insurance does pay full price to see a doctor or to be treated at a hospital during that time does not mean they participated in the health care insurance market, either.

Posted by: joeduffus | July 2, 2010 10:49 AM | Report abuse

"If the courts believe the mandate can be authorized by Congress' power to regulate interstate commerce, it would mean there are virtually no limits on federal power, he says."

The people of the United States get to elect congress and the president. We can vote in different people if we want. Congress can undo any law they pass. The president doesn't have to sign every bill into law.

How would the Health Care law mean there are no limits on federal power?

the guy is a moron.

Hospitals are not allowed to turn away people without health care or who can't afford to pay. And that's how it should be.

But we shouldn't allow the uninsured to bankrupt our hospitals and health care system (which is what would of happened if Congress had failed to act).

9/11 has forced me to forgo some of my privacy in the interest of national security. The uninsured need to pay their fair share in the interest of our national health security.

and stop being such whinny babies about it.

Posted by: MarilynManson | July 2, 2010 12:40 PM | Report abuse

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