Virginia Says It Can Challenge Federal Government over Mandate

Janice Simmons, June 9, 2010

In response to the motion filed two weeks ago by the Obama administration to dismiss Virginia's lawsuit over the new federal healthcare reform law, State Attorney General Ken Cuccinelli countered in his motion filed this week that the state can challenge the federal government over the individual mandate to purchase healthcare insurance.

In the May 24 federal motion filed in the U.S. District Court for the Eastern District of Virginia, Health and Human Services Secretary Kathleen Sebelius said that the healthcare reform law was within the scope of the Constitution's Commerce Clause. However, in his June 7 motion, Cuccinelli disagreed: "A claim of power under the Commerce Clause to regulate the status of being uninsured is unprecedented, as Congress well knew prior to passing the law."

"Despite the Secretary's attempt to characterize this lawsuit as a policy battle, it is not," Cuccinelli added in his motion. "This is a legal contest. At issue is whether a state law survives because the federal law that would displace it is beyond the power of Congress to enact--or whether the state law must yield to a valid federal enactment."

If the government prevails in the case and "Congress uses the Commerce Clause to order Americans to buy private health insurance, then Congress will have been granted a virtually unlimited power to order you to buy anything," Cuccinelli added.

Cuccinelli also countered that it does not matter that the mandate will not take effect until 2014. Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this will not prohibit the suit from being brought in the present, he observed in a statement.

The Virginia case is separate from a Florida suit, which includes 20 states challenging the legislation over similar grounds on the insurance mandate. It is also separate from a suit filed in Michigan on behalf of four uninsured individuals who did not plan to buy health insurance and claimed they would be harmed by the monetary penalty when insurance becomes mandatory in 2014.

If U.S. District Court judge allows the case to move forward, it could be heard Oct. 18.

Janice Simmons Janice Simmons is a senior editor and Washington, DC, correspondent for HealthLeaders Media Online. She can be reached at
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