Back to the Constitution

The GOP’s weekly conference call on Thursday included a discussion with Attorney General Ken Cuccinelli (R-Va.), who is one of more than a dozen state attorneys general who have filed lawsuits challenging the constitutionality of the health care bill President Obama signed into law on March 23.

Cuccinelli filed on behalf of the state of Virginia in the case of Commonwealth v. Kathleen Sebelius in U.S. District Court for the Eastern District of Virginia, and represents the only state that has passed a law to protect its residents from any obligation to buy federally mandated health care insurance. The legislation, Virginia Health Care Freedom Act introduced by Delegate Robert Marshall, passed with bipartisan support and was signed by Governor Bob McDonnell on March 24.  For this reason, Cuccinelli has not joined the lawsuit filed by a dozen and counting AGs, making Virginia’s a sole brief.

The national mandate, United States National Health Care Act, conflicts with the Virginia Health Care Freedom Act, and under the Supremacy Clause, Cuccinelli will have to prove that the federal legislation is unconstitutional in order for the state law to stand. He and his team hope to prove this by using the Commerce Clause, which gives the federal government the power to regulate interstate commerce.

Cuccinelli said the federal government is trying to compel people to involuntarily enter the stream of commerce (much like ordering citizens to buy a Chevy every year), and believes the government doesn’t have the power to compel someone to do something that is against their will. He added that the federal government can’t regulate not buying heath insurance as commerce. “Just being alive is not interstate commerce,” he said. “If it was, then government could regulate anything.”

In Cuccinelli’s opinion, by mandating U.S. citizens to purchase health care insurance, the federal government is carving out more power for itself and is encroaching on the liberties of its citizens.

He said that those who refuse to purchase health care insurance will have to subsidize others. The government will do this by using the taxation power under the Constitution—citizens will pay a penalty for not purchasing health care insurance. Cuccinelli said that by doing this the government will simply redistribute income. He added that commerce is a passive power and it can’t create, it can only regulate something that already exists. “If you are not engaging in commerce, then how can the government regulate you?” he asked.

Those who want to read the lawsuit or gather more information about the case can visit the Attorney General’s Web site, www.oag.state.va.us.

Cuccinelli explained that since there is no Severability Clause in the federal legislation, the entire bill will fail if Virginia wins the case before the U.S. Supreme Court. The Attorney General’s Web site says: “If the suit is successful, the savings to the Commonwealth of Virginia alone is estimated by the Governor’s office to be about $1.1 billion from 2015-2022. This is because if the health care reform act remains law, Virginia would realize an additional $1.1 billion in costs for the new Medicaid requirements called for in the act. This savings figure does not take in to account the tax and fee savings to individuals and businesses if the federal law is struck down as unconstitutional.”

Melissa Barnhart is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.