Legal News

Virginia AG and Conservative Darling Takes on Health Care Solo

By Ashby Jones

Judging from some of the comments we’ve received this week on our posts about the health care bill, people seem angry. Many are angry that the bill passed in the first place and are thrilled to see folks suing to stop it. Others are angry that anyone, like a group of state attorneys general, have the audacity to use the courtroom to strike down what took months of arduous legislative work to accomplish.

Our point: there’s anger and there’s interest in these lawsuits, and we’re going to keep on writing about them.

And that brings us to this story, from Wednesday’s Washington Post on the suit filed Tuesday by Virginia Attorney General Ken Cuccinelli II (pictured). Click here for a copy of Cuccinelli’s complaint.

Thirteen other state AGs also filed suit to stop the health-care law on Tuesday (click here for our LB post on that). But, writes the WaPo:

Cuccinelli (R) went his own way, arguing that a Virginia law enacted this month that prohibits the government from requiring people to buy health insurance creates an “immediate, actual controversy” between state and federal law that gives the state unique standing on which to sue.

The WaPo goes on to describe Cuccinelli as an AG whose profile is on the rise. He’s garnered the support of a leader in the Virginia Tea Party movement, and has, in the words of the Post, “become a fixture on national cable TV news shows.” Of course, he’s got his detractors, too, some of which are “are convinced that he is an ideologue using his office to further a political agenda and that he is interested only in representing those who share his views.”

And what about this lawsuit?

On first blush, its main assertion — that a federal law interferes with a Virginia law — would seem to have some serious Supremacy Clause problems. (The Supremacy Clause, part of Article IV of the Constitution, says that U.S. law shall be the “supreme Law of the Land.”)

But the Supremacy Clause doesn’t matter, Cuccinelli argues, if the underlying U.S. law is itself unconstitutional. The health-care law, he argues, is unconstitutional on grounds largely articulated in the suit filed Tuesday in Florida — that Congress does not have the power to regulate affairs that are not commercial in nature.

States Cuccinelli:

The status of being a citizen or resident of the Commonwealth of Virginia is not a channel of interstate commerce; nor is it an activity arising out of or connected with a commercial transaction. Instead, the status arises form an absence of commerce, not from some sort of economic endeavor, and is not even a non-economic activity affecting interstate commerce. It is entirely passive.

Full post as published by Law Blog - WSJ.com on March 24, 2010 (boomark / email).