Health Care Freedom Act

Analysis Of Today's Health Care Lawsuit Hearings At The U.S. Fourth Circuit Court Of Appeals: Is It An Advantage For Virginia To Lose This Round?

Today the U.S. Fourth Circuit Court of Appeals heard two cases challenging the constitutionality of the federal health care law. One, Liberty University v. Timothy Geithner, was on appeal by the college, which lost its case in Federal District Court for the Western District of Virginia. The other, and more well known case, Commonwealth of Virginia v. Kathleen Sebelius, was on appeal by the federal government because Judge Henry Hudson in the Eastern District of Virginia, ruled the law unconstitutional late last year. The Fourth Circuit includes all of Virginia (as well as other states) so both appeals were heard at its courthouse in Richmond. As appeals are heard by three judge panels and since one panel within a circuit court cannot overrule another, the same panel heard both cases. Selection of the three judges, according to the court, was done at random by a computer system. Its picks were Judges Dianna Gribbon Motz, Andre Davis and James Wynn, Jr. — two appointed by President Barack Obama and one by President Bill Clinton. Mathew Staver, Dean of the Liberty University School of Law and lead attorney for Liberty Counsel; Duncan Getchell, Solicitor General for the Commonwealth; and Acting United States Solicitor General Neal Katyal argued the cases. The judges heard the Liberty case first and despite a straightaway-launch into skeptical questioning of Mr. Staver, they were at least as difficult on Mr. Katyal. It made for a compelling debate, so much so that the scheduled 40 minute hearing was extended by Judge Motz to 1:24. It was gripping even for experienced court observers, not to mention for someone, like me, who has limited in-person exposure to high level jurisprudence.

Since it covered most of the merits of the cases in the first one (although the cases are being argued on slightly different grounds) the Virginia case only went nine minutes beyond the 40 scheduled, with most of the questioning on Virginia's standing to even bring the case. Interestingly, Mr. Katyal said Liberty had standing, even though that was partly the grounds for its loss, because as individuals and employers it had grounds to question the employer and individual mandates enforced by the law. Although the feds lost its motion to dismiss against Virginia, again argued that line of attack. Mr. Katyal alleged Virginia passed the Health Care Freedom Act in order to have standing to challenge the health care law and that if allowed to stand, any state could pass any law any time to challenge any federal law from which it wishes to be exempt. This clearly frustrated Mr. Getchell who argued it is an unquestioned right for states to pass laws. Unfortunately, Judge Davis would have none of this and clearly blustered partisan talking points rather than judicial prowess.

On the whole, the three judges, especially Motz and Wynn, seemed open minded. Judge Motz especially perked up each time one of the three lawyers cited the Comstock case, in which her opinion came down on the limited government side. Judge Wynn clearly had problems with several instances of federal twisted logic. For example, Mr. Katyal said the words in the law don't mean what they say in the penalty provision because it is a tax even though the word tax is never mentioned in the law; and that the law does not regulate inactivity because deciding not to purchase insurance is an activity and that forcing people to buy insurance only is an "upfront payment" for a service it will use eventually. So, there was at least an appearance that the judges, despite their political pedigree, were open minded. (Prediction: 2-1 for ObamaCare.)

But here's a theory: Does Attorney General Ken Cuccinelli want to win at this stage? If he does, the feds surely will appeal to the entire Fourth Circuit. That will delay a trip to D.C. for a date with the Supremes by months, even a year. If Virginia loses, he can appeal directly to the U.S. Supreme Court, where its jurisprudence may well favor voiding the law. Remember, he attempted an extraordinary expedited appeal there and was greeted with some sympathy. He wants to get there as soon as possible. So, Virginia is in a good position: If it wins, with at least two Democrat appointed judges siding with it, the feds don't have much chance en banc, either. One caveat: If Virginia loses on the question of standing, he would have to appeal that first, in essence to win permission just to continue the suit. That's what was dangerous about the direction of the argument in the Virginia hearing. Ironically, it could be the Liberty lawsuit that could win the day, based on the intensity and skepticism of the questions to Mr. Katyal. We shall see.

Now, here's a treat. Below is are links to the audio of each case. Click and enjoy your online legal education. Its worth the listen.

Liberty University v. Timothy Geithner (1:24)

Commonwealth of Virginia v. Kathleen Sebelius (:49)

Cuccinelli To Update Health Care Lawsuit On June 16 Webcast

Attorney General Ken Cuccinelli on June 16 will Webcast an update on the lawsuit he filed against the federal government's health care law. It requires, for the first time in American history, that Americans purchase something in conflict with Virginia's Health Care Freedom Act. Three days ago, the feds filed a routine motion to dismiss the suit. The commonwealth will respond to this motion by June 7. The federal government then has until June 22 to reply to Virginia's response. At that point, be prepared, as the case will likely accelerate. Toward that end, the attorney general promises to keep Virginians in the loop about the ongoing legal process. Thus, the Webcast . . .

. . . to discuss where we are on the case, what you can expect going forward and the constitutional issues involved. ... I wanted to make sure you have a chance to participate in the health care discussion.

This Webcast is free and open to the public (and not produced at taxpayer expense), but viewers must register (click here). Following the update, there will be a question and answer period. In the meantime, click here to read a column Mr. Cuccinelli wrote about the lawsuit and other commentaries on constitutional issues his office is confronting.

Cuccinelli Thrills Pro-Family NOVA Crowd

Nearly 100 grassroots activists, elected officials and candidates for office attended the Prince William and Manassas Family Alliance Gala dinner Monday evening where they were addressed by Attorney General Ken Cuccinelli. The AG updated the guests on the lawsuit filed by his office defending Virginians from the federal government's new individual mandate to buy health care insurance and its violation of Virginia's new Health Care Freedom Act, passed with bipartisan support this past General Assembly session, as well as the U.S. Constitution's 1oth Amendment and interstate commerce clause. (Click here for the Manassas News & Messenger's coverage.) Interestingly, Mr. Cuccinelli referenced George Washington University Law School professor, and oft quoted, Jonathan Turley who has argued that the federal health care act could be the final blow to the Founder’s vision of federalism. Should Cuccinelli's suit, or the others being brought by nearly two dozen states, fail, Turley insinuates that there would then be very little left outside the control or influence of the federal government. Mr. Cuccinelli added that if the government can compel its citizens to purchase one product (health insurance) there is nothing to stop it from purchasing another product (say, a car made by GM).

Essentially, he is arguing that individual citizens who do not have health insurance are thus not participating in the "interstate commerce" of health care insurance, and so cannot be compelled to purchase it by the federal government under the interstate commerce clause. Case law surrounding the interstate commerce clause is lengthy and confusing to say the least. However, there appears to be no other example where the courts have ruled economic inactivity to be interstate commerce (one exception being from 1792 when Congress compelled people to buy guns — really).

Ultimately, this case is likely to be decided by the U.S. Supreme Court. The AG doesn't think  that will take place until at least mid-2012. The individual mandate in the health care bill doesn’t take effect until 2014.

Currently, 21 states, including Virginia, are involved with some type of lawsuit against the federal government concerning the health care law. The two primary suits are in Virginia and Florida. Mr. Cuccinelli urged the crowd Monday night to take advantage of the times to educate and inform their friends and family, particularly their children, on the first principles of our nation’s founding documents, such as the Declaration of Independence and the U.S. Constitution. Many people today do not know enough about our Founding or what those documents say to understand the implications of the federal government's take over of what has always been a private enterprise.

Few disagree that there is need for some type of health reform in our nation. At The Family Foundation we struggle each year to pay the ever-increasing cost of health care for our staff. But few outside the beltway, or among the academic left, believe that the federal government is capable of managing our nation’s health care system wisely.

McDonnell's First 100 Days: The View From The Family Foundation

The Washington Post ran a recent Sunday edition story that suggested a chasm has developed between Governor Bob McDonnell and social conservatives. According to the article, some have become disheartened and feel the governor has let them down while others are more willing to be patient and give the governor time. So, what does The Family Foundation think of the governor's first 100 plus days? Understanding the context of events is always key to accurate analysis. So let’s remember that for the past eight years social conservatives in Virginia have been isolated from the governor's office. Both previous governors were at times openly hostile to traditional values issues. Governor Mark Warner gave $25,000 to the Commonwealth Coalition, the organization that opposed the Marriage Amendment, and regularly opposed our agenda (hear in his own words what he thinks of Christian conservatives). Governor Tim Kaine openly campaigned against the Marriage Amendment and also opposed much of our agenda (though he did work with us on several marriage initiatives). Add to that the fact that in November 2008 Virginians voted for Barack Obama for president, and political pundits (as usual) proclaimed social conservatism dead. Any candidate who wanted to win had to disavow  caring about the unborn and marriage and stick to one thing and one thing only — money (well, the economy).

Enter Bob McDonnell. A long time friend of social conservatives and leader on many of our issues, values voters were energized by a candidate they could call "one of us." While campaigning, candidate McDonnell steered clear of social issues unless asked, focusing on exactly what the "experts" said he had to focus on — the economy. Some social conservatives expressed frustration that McDonnell wasn't more vocal on abortion and other social conservative causes, but many understood that the political climate was such that the majority of voters were most concerned about their personal well-being with an economy in recession and a federal government spending us into oblivion.

On Election Day, social conservatives voted for McDonnell in droves. Exit polling showed that nearly half of McDonnell's voters were self-identified evangelicals. Clearly, they believed that Bob McDonnell was going to be their guy in the Governor's Mansion. As with any constituency, those votes did not come without expectations, and they were high expectations at that.

Once sworn in, he went to work on his campaign promise to bring Virginians a balanced budget without higher taxes, and job development. Most agree that the governor has largely fulfilled those promises — though some are concerned with increased fees in the budget. During his administration's first General Assembly session the governor was relatively quiet on social issues, though his administration did vocally support abortion center safety legislation in the Senate Education and Health Committee. He also renewed an executive order concerning non-discrimination in state hiring practices, but did not include "sexual orientation" as had been done by the two previous governors (though Governor Warner did it in the last month of his administration).

Of course, things didn't go perfectly for the new administration. Social conservatives were particularly disappointed that he chose to issue an "executive directive" concerning hiring practices that included "sexual orientation," and we explained those concerns to him both publically and privately. He did, however, sign the Health Care Freedom Act, the first legislation of its kind in the nation that hopefully will protect Virginians from being forced by the federal government to purchase health insurance. He also protected Virginians from being forced to pay for low-income elective abortions (a major pro-life victory) and ensured that Planned Parenthood can't use the money they make off of their new license plate to perform abortions.

Now, we are just passed the first four months of his four-year term, and some conservatives are expressing disappointment, even outrage, with the governor's actions thus far. Interestingly, I was interviewed for the Post article long before its publication date, and at the time, we were encouraging the governor's office to take a more pro-active approach on social conservative issues. In particular, the discussion surrounded the pro-life budget amendments the governor chose not to introduce — defunding Planned Parenthood and failed embryonic stem cell research. On that issue I said to the Post:

We want him to do more, and we will continue to ask him.

I stand by those words. Once something is in the budget it is difficult to remove it. While we trust that Planned Parenthood will not receive any taxpayer money during this administration, we continue to believe that adding such language to the state budget will protect taxpayers in future years.

But remember the context of my Post interview:

In between my interview with the Post and the article's publication — several days — the governor fulfilled an extremely important campaign promise and reversed the Kaine administration's discriminatory prohibition on prayers offered by state police chaplains. In a press release I said we were "thrilled" with the governor's action, and we are. This was an important and courageous action and Virginians are better off for it. We also asked you to contact Governor McDonnell and thank him as well.

So, how is the governor doing? (Honestly, I think social conservatives need to take a deep breath, and remember that there are still three years and seven months left in this administration. We have to remember the victories he has delivered, while knowing that there is still a lot to be accomplished. But we are confident that the governor understands the concerns we have. There are pressing issues facing our commonwealth and the governor needs to address those issues. At the same time, the culture of Virginia must also be a priority for this administration. We will continue to encourage him to take the lead on family issues that are the foundation to the very economy he is trying to fix (see more of my comments in another article on this topic in the Richmond Times-Dispatch).

The Family Foundation is determined to be strategic in our efforts. We understand the political climate is hostile and we have to accept that incremental victories are victories nonetheless. Those who demand "all or nothing" tend to receive nothing. We are encouraged by the recent actions of Governor McDonnell and continue to believe he will fulfill his campaign promises.

Virginia News Stand: May 8, 2010

Annotations & Elucidations Weekend Edition

Wow! It looks like there was public prayer in Fredericksburg and the city is still standing. Amazing! Who would've thought? In other news sure to frighten liberals, the feds asked for and received more time to respond to Virginia's defense of its Health Care Freedom Act. Hmmm. Haven't all the experts said Attorney General Ken Cuccinelli doesn't have a chance? So, then, why do the G-men need more time? 

On the other hand, U.Va. snapped in line quickly, promising to turn over all documents the AG has requested in the case of former university professor Michael Mann, one of the main characters in the "Climate-gate" scandal, in which "global warming" scientists admitted they made up facts and concealed others to manipulate date and public perception — and, more importantly — public policy (i.e., job-killing taxes and cumbersome regulations). Meanwhile, Governor Bob McDonnell announced that transportation meetings now will be streamed online as well as members of a commission to recommend streamlining government. That should be news only when the recommendations, if any, are put into effect, as we've seen governor after governor put commissions in place. Nothing much ever results from them.

Nationally, Dems are worried stiff over two long-held House seats in which there are special elections this month. Many think they could be bellwethers for November.  


Prayers are shared with no complaints (Fredericksburg Free Lance-Star)

Online-schools firm hires former lawmaker as lobbyist (Richmond Times-Dispatch)

State has teeth but rarely bites schools suspected of cheating (Norfolk Virginian-Pilot)

Bedford student sues after suspension over 'sexting' (Lynchburg News & Advance)

Feds given more time to respond to Virginia health care suit (Washington Post Virginia Politics Blog)

U.Va. plans to comply with Cuccinelli subpoena (Washington Post Virginia Politics Blog)

Cuccinelli plans to propose legal changes in wake of U.Va. lacrosse killing (Washington Post Virginia Politics Blog)

McDonnell names commission to reshape, shrink government (Washington Post Virginia Politics Blog)

Gingrich to join McDonnell in Richmond to talk about health care (Washington Post Virginia Politics Blog)

McDonnell announces transportation meetings will be streamed online (Washington Post Virginia Politics Blog)

National News

Dems may abandon House race in Hawaii (AP/

Dems fear losing four-decade grip on Pa. seat (AP/

Graham prays at Pentagon, says 'Islam got a pass' (AP/

Palin endorses Fiorina in California Senate race (AP/

Ariz. governor rejects delay of immigration law (AP/

Lawmakers: Revoke citizenship of terrorists (AP/

Wall Street regulations stagger ahead (AP/


Debt-Deflation-Contagion Panic: It's a Bloody Mess (Larry Kudlow/

Leftist Turnout is what Motivates Obama (Dick Morris/

Misperceptions and Media Bungles (Matt Towery/

Fox Entertainment's Dung Pile (Brent Bozell/

The Problem With the NFL (Oliver North/

The Go-Fly List for Terrorists (Michelle Malkin/

How Dare Arizonans Try To Protect Themselves? (David Limbaugh/

Arizona: Been There, Done That (Harris Sherline/

Senate Again Playing Games With Its Own Rules, This Time On HB 10!

As lobbyists at the General Assembly, we subscribe to something called Lobbyist In A Box, from the GA's Legislative Information Services division. It's a very handy tool that let's you know, with fair regularity, all the updates to all the bills you track. So, it wasn't a surprise when an update flashed up on HB 10, Delegate Bob Marshall's (R-10, Prince William) Health Care Freedom Act. After all, it passed the House comfortably yesterday and the notice probably was a pro forma notification that it was sent to the Senate. Oh, boy, was it! Just as it did with the coerced abortion bill, the Senate powers have placed HB 10 in the Committee on Education and Health instead of the Commerce and Labor Committee. Could it be that the Democrat leadership doesn't want to get embarrassed with another defeat in that committee, as it did earlier in session with the passage of the senate versions of HB 10? Hmmm.

Here is what the Senate Rules say about the jurisdiction of the two committees:

18 (b). A Committee on Commerce and Labor, 15 Senators, to consider all matters concerning banking; commerce; commercial law; corporations; economic development; industry; insurance; labor; manufacturing; partnerships; public utilities, except matters relating to transportation; tourism; workmen's compensation and unemployment matters.

18 (d). A Committee on Education and Health, 15 Senators, to consider matters concerning education; human reproduction; life support; persons under disability; public buildings; public health; mental health; mental retardation and health professions.

Seems pretty straightforward to me. After all, the House heard four such bills and all were in its Commerce and Labor Committee and the Senate heard three, all in its C&L Committee. How does this not smell? We report. You decide.

In the end, though, Senate Dems are a day late and several bucks short. Today, the Senate bills all passed the House and are on their way to Governor Bob McDonnell. Too, bad, liberals.

Health Care Freedom Act: Delegate Bob Marshall's View The Day After The Historic Senate Vote

Here's Delegate Bob Marshall's (R-13, Manassas) take on the Health Care Freedom legislation pending in the General Assembly, in a statement released earlier today, in light of the historic Senate vote yesterday:

Congress is attempting to make Virginia and other states mere administrative agents for dubious public policies that the Congress either lack the money to enforce or the authority to enact. Congress has seen states pay for the programs or fail to challenge their legitimacy because of the financial and legal difficulty of doing so.

Rights are not kept secure by silence or timidity in defending them. For too long, state legislators have been intimidated from challenging members of Congress to abide by the Constitutional limits on their enumerated powers. And for too long, citizens have allowed their state representatives to do nothing in defense of their rights against predators in Washington, D.C. — until now.

The Ninth and Tenth Amendments clearly reserve to citizens and states the power to challenge and reject over-reaching policies of the national government such as National Health Care. ...

* * * * *

The Health Care Freedom Act (HB 10) is a challenge to Obamacare insurance mandates. It protects an individual's right to participate in or to decline to participate in a health care system or plan for any lawful medical service, and it prohibits the imposition of a penalty, tax, or fine upon an individual who declines to enter into a contract for health care coverage. HB 10 will allow Attorney General Cuccinelli to defend any Virginia taxpayer against the IRS for declining to purchase health care required by Obamacare.

Congress’ own Budget staff has stated that never in 220 years have individuals been mandated to purchase any private good or service by Congress, much less be prosecuted by fines and jail time for refusing to do so.

And the Congressional Research Service in 2009 noted that the individual insurance mandates face constitutional problems:

“Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance. Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”

Attorney General Cuccinelli supports HB 10. HB 10 passed subcommittee 8-2. A full House of Delegates vote is expected Feb. 7-8 or after. HB 10 is the most viewed bill on the General Assembly's website in the 2010 session. (See HB 10 Q and A at