Constitution Comes First in Virginia's Obamacare Challenge

Constitution Comes First in Virginia’s Obamacare Challenge


By Rob Bluey
Heritage Foundation

RICHMOND, Va. – Visitors in Ken Cuccinelli’s modest office overlooking the state Capitol can readily see the appreciation of Virginia’s attorney general for the Founding Fathers.

Paintings of George Washington, Thomas Jefferson and Patrick Henry hang on his wall. The Gadsden flag stands next to his desk. And when you ask Cuccinelli about Obamacare, he immediately shifts the conversation to the U.S. Constitution.

“I don’t think in my lifetime we’ve seen one statute that so erodes liberty than this health care bill,” Cuccinelli said in a recent interview.

“Certainly, we view our lawsuit as being not merely about health care. That’s actually secondary to the real important aspect of the case, and that is to protect the Constitution as we essentially define the outer limits of federal power. If we lose, it’s very much the end of federalism as we’ve known it for over 220 years.”

Virginia’s lawsuit asserts that President Obama’s health care law is unconstitutional on the basis of its individual mandate requiring Americans to buy insurance. The suit seeks to protect a Virginia statute, passed by the state legislature in March, which says Virginians cannot be compelled to buy health insurance or to pay a penalty if they refuse insurance.

A federal court in Richmond will hear oral arguments in the case on Thursday, July 1. That makes Cuccinelli’s office ground zero in Virginia’s battle to undo Obamacare.

Aside from the lawsuit, the state is also facing the fiscal burdens that come with Obamacare.

Official estimates put the law’s cost to the state at $1.5 billion through 2022. That’s because about 80,000 low-income children and teens in Virginia will no longer be covered by the Children’s Health Insurance Program, which supplies states with a generous federal match. Instead, they’ll be enrolled in Medicaid — and Virginia will have to foot more of the bill.

And those 80,000 children won’t be the only people added to the rolls: The state will eventually have to extend Medicaid coverage to some 400,000 additional people.

While these fiscal challenges pose a threat to Virginia’s budget, Cuccinelli is focused on the law’s constitutionality. He believes the case will ultimately end up at the U.S. Supreme Court within two years.

Another lawsuit from 20 attorneys general and the National Federation of Independent Business could make its way there, too. That case is currently in a federal district court in Florida.

Virginia decided to pursue its own legal path independent of the other states because of the action of its legislature. Cuccinelli believes that, as more states enter the courtroom, the Supreme Court will recognize the importance of the issues at stake.

“Never before has the federal government ordered individual Americans to buy something from other Americans,” Cuccinelli said. “It is an extraordinary extension of power by the federal government and it is also an imposition on our state’s law.”

The Obama administration views things differently. Health and Human Services Secretary Kathleen Sebelius filed a motion to have the case dismissed on the grounds that the state doesn’t have standing to sue — a move Cuccinelli predicted and had been preparing to counter. He filed a response June 7. Oral arguments are expected in July.

Regardless of what happens in the district court, Cuccinelli said he’s prepared for a lengthy legal fight. And because he just took office in January, he vowed to remain vigilant.

“We are absolutely in it for the long haul, and that’s important,” he said, noting that he’s also suing the Environmental Protection Agency for its claim that greenhouse gases jeopardize human health. “I’m going to be in this office to see these cases all the way through. And we are going to see them all the way through.”

As he sees it, this is something the Founding Fathers would want the states to do, provide a much-needed check in the system of checks and balances outlined by James Madison in the Federalist Papers.

“We can protect our citizens, and be in a position to protect our laws, where we represent our citizens, even against the federal government. Virginia is a sovereign entity in this constitutional system,” Cuccinelli said.

“We created, along with 12 other states at the time, the federal government as it’s currently structured. And we intend to remind them of that with this lawsuit.”


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