ObamaCare Lawsuit: Who's Wasting Money Now?Mar. 16, 2011
Speaking of Virginia's lawsuit against ObamaCare: Remember all the liberal hysteria regarding all the money Attorney General Ken Cuccinelli supposedly is spending on the constitutional challenge to the federal health care law (Richmond Times-Dispatch) — as if government spending has ever been an issue with liberals? Never mind that he is defending Virginia law (the Virginia Health Care Freedom Act), which it is his duty to do. Where are the howls of disgust by the same people now that the Obama Justice Department refuses to agree (Times-Dispatch) with the Attorney General for an expedited appeal to the U.S. Supreme Court (Washington Examiner)? Without such an appeal, we're talking at least two cases in U.S. Courts of Appeals, at least another year or more of legal work and court proceedings, endless briefs and motions, travel from Washington to Richmond and Atlanta, meetings, hundreds of hours of federal government employee time and who knows what else it takes to try a case these days — only this will be two cases simultaneously, not to mention any further cases that are filed in federal district courts by other states or aggrieved parties. It's no exaggeration to say the cost could be in the millions. That's a lot more than the $350 it cost the Commonwealth to file its case in Federal District Court for the Eastern District of Virginia . . . but a lot less than the $1.1 billion it will cost Virginia to implement ObamaCare. The pricelessness of the hypocrisy is passed only by the reality of the true costs.
Federal Judge In Florida: Obamacare UnconstitutionalJan. 31, 2011
Today, a second federal judge in as many months ruled Obamacare unconstitutional (see Avik Roy at The Apothecary blog at Forbes.com). That's two lawsuits involving 27 states against the federal government's healthcare takeover and two rulings that it is unconsitutional. Perhaps the most devastating aspect of Judge Roger Vinson's decision is that he ruled the entire law is unconstitutional because the offending portion — the individual mandate that forces Americans, for the first time in history, to buy a product — is not severable. In other words, when the law was drafted, in its legislative sloppiness, the U.S. Senate did not include a clause that declared if any part of it was ruled unconstitutional, the remainder of the law remained in effect. Even Judge Henry Hudson, of the Eastern District of Virginia, who was the first judge to rule Obamacare unconstitutional, refused to go that far. But Judge Vinson did not enjoin the law (see 21StateLawSuit.com), either.
Much like Judge Hudson's opinion, however, Judge Vinson said the law goes well beyond the limits of the Commerce Clause and any High Court precedent. He wrote:
The individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.
Here is Attorney General Ken Cuccinelli's reaction:
I am heartened by the fact that another federal judge has found that the individual mandate forcing citizens to buy private health insurance is unconstitutional. The judge also found that the individual mandate could not be severed from the remainder of the law, so he declared the entire act invalid.
Constitutional principles have scored another victory today. Liberty has scored another victory today.
I congratulate Florida Attorney General Bondi, former Attorney General McCollum, and the attorneys general and governors who joined the Florida suit, on their victory.
Here is Governor Bob McDonnell's reaction:
Judge Vinson's ruling is yet another strike against the individual mandate specifically, and the entire federal health care law generally. For the second time in as many months, a federal judge has found that Congress exceeded its constitutional authority by mandating that citizens of this nation purchase a commercial product or else face a penalty.
Judge Henry Hudson reached a similar conclusion in his December ruling on the Commonwealth's challenge to the Act. However, Judge Vinson's decision goes one step further. The Judge also ruled that the individual mandate component is not severable from the overall Act in which it is contained, meaning that this one unconstitutional provision renders the entire bill void.
I agree with both Judge Vinson and Judge Hudson that the individual mandate is clearly unconstitutional. However, this matter is far from settled. Today's decision adds to the growing uncertainty surrounding federal health care reform. That uncertainty is leaving states, businesses and individuals unable to properly plan for 2014 and the scheduled implementation of this new law.
For this reason I reiterate my request that the Department of Justice join with the states to request fast tracking the challenges to the Patient Protection and Affordable Care Act to the Supreme Court of the United States, where the final decision regarding its constitutionality will ultimately be determined. All parties involved, no matter where they stand on this measure, should support moving this issue to its final stage, and bringing finality to a complicated matter that will have an impact on every state, employer and citizen of this nation.
Fourth Circuit Agrees To Take Obamacare Appeal EarlyJan. 26, 2011
In a bit of breaking news, the Fourth U.S. Circuit Court of Appeals agreed to an expedited hearing of the federal government's appeal of Virginia's legal challenge to the federal health care law. Here's Attorney General Ken Cuccinelli's news release:
RICHMOND (January 26, 2011) — The U.S. Court of Appeals for the Fourth Circuit today granted a joint motion from Attorney General Ken Cuccinelli and the federal government to expedite the hearing of Virginia’s suit against the federal health care law. The case is tentatively scheduled for hearing sometime between May 10 and 13. This replaces a briefing order previously issued by the court.
"Right now, there is a great deal of uncertainty for states, individuals, and businesses. Major decisions are already being made and money is already being spent to comply with a law that may not be around two years from now. We need this suit resolved as quickly as possible, for the good of our citizens and our economy," said Cuccinelli.
Cuccinelli is still weighing whether or not to request that the U.S. Supreme Court take the case directly and skip the Fourth Circuit altogether.
The court ordered the following briefing schedule:
Opening briefs due February 28
Response briefs due March 28
Reply briefs due April 11
More information on the health care lawsuit can be found at the attorney general's health care archive, here. Virginia won round one late last year when Federal Judge Henry Hudson of the Eastern District of Virginia declared the statute unconstitutional. The Obama administration's appeal is of that decision.
Cantor's Take On Obamacare Ruling: Go Straight To Supreme Court, Vote On RepealDec. 13, 2010
U.S. District Court Judge Henry Hudson today ruled in the Eastern District of Virginia that President Obama's signature health care law, Obamacare, was an unconstitutional mandate forcing people to purchase health insurance that they might not want, need or be able to afford.
Following the decision, Congressman Cantor called for the case to move directly to the U.S. Supreme Court so the issue could be resolved immediately.
Congressman Cantor further stated that when Republicans assume control of the House in January they would pass a clean repeal of Obamacare.
Today's ruling is a clear affirmation that President Obama’s health care law is unconstitutional. The efforts of Governor McDonnell and Attorney General Cuccinelli have raised legitimate concerns and ensured the people of the Commonwealth will have their rights protected against this unconstitutional law. Ultimately, we must ensure that no American will be forced by the federal government to purchase health insurance they may not need, want, or be able to afford.
Breaking: Virginia Wins Round One In HC Legal Challenge!Dec. 12, 2010
Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, ruled within the last few minutes that the individual mandate provision of the new federal health care law is unconstitutional. News leaked out at noon, when Attorney General Ken Cuccinelli sent a tweet that claimed:
HC ruling is in. Va won this round.
He followed that up with an e-mail about 17 minutes later:
Today, a federal judge in Richmond ruled the individual mandate of the federal health care law UNCONSTITUTIONAL!
In other words — we won!
This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution.
I am still fully digesting the court's ruling, so I'll get back to you again later with more details, but I wanted you to hear the good news right away.
Thank so many of you for your support to become the Attorney General of Virginia, and your support since then. Today is a day to celebrate those same first principles that our founding fathers articulated over 200 years ago.
We are proud to defend their work and the same first principles today in the 21st century.
Stay tuned — and thank you for your support.
To Judge Hudson's decision. Here are pertinent quotes from his 42 page opinion (see here):
Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I. ...
The absence of a constitutionally viable exercise of this enumerated power is fatal to the accompanying sanction for noncompliance. ...
A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimal Essential Coverage Provision would invite unbridled exercise of federal police powers (emphasis added). At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it's about an individual's right to choose to participate.
Article 1, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or to the people.
On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act — specifically the Minimum Essential Coverage Provision — exceeds the constitutional boundaries of congressional power.
Judge Hudson, however, did not do two things the Commonwealth asked: He did not place an injunction on the law, stating the individual mandate won't take affect for three more years while acknowledging his decision will be appealed. However, he cited precedent stating that "declaratory judgment is the functional equivalent of an injunction," and noted the Commonwealth conceded the administration is duty-bound to honor the decision.
He also did not invalidate the entire law, saying there were more than 400 provisions unrelated to the specific provision challenged. That, however, gives an idea as to how obnoxiously crafted the legislation was.
BREAKING: Internet Exclusive: See Entire Cuccinelli Post Health Care Hearing News Conference HereOct. 18, 2010
In an another Internet exclusive, just as with the July 1 hearing on the federal government's motion to dismiss Virginia's constitutional challenge to the new federal health care law, we have Attorney General Ken Cuccinelli's entire post-hearing news conference. The meeting with the media took place at about 12:30, about an hour after Federal District Judge for the Eastern District of Virginia Henry Hudson heard two hours of oral arguments from the Department of Justice, representing U.S. Health and Human Services Secretary Kathleen Sebelius, and the Office of the Attorney General, representing the Commonwealth of Virginia. The news conference is in five parts below. We will have comment tomorrow. No need to sort through what the mainstream media tells you. Hear and see it for yourself, right here. Attorney General Cuccinelli's statement and questions from the media take about 42 minutes. His statement is in the first two parts, and takes about 18 minutes. A good portion of his statement recaps the hearing (which was good since seats in the courtroom were limited and the overflow room's audio failed) and then lays out the historical and legal basis for the constitutional challenge. Whatever one thinks of the Attorney General Cuccinelli's positions, no one can doubt his preparation and knowledge of the legal, historical and constitutional context of the matter at hand.
Virginia Obamacare Law Suit To Be Heard Monday MorningOct. 15, 2010
Virginia's law suit against the new health care law — known officially as "Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II vs. Kathleen Sebelius, Civil No. 3:10CV188, Motion Hearing" — will proceed Monday morning at 9:00 in Judge Henry Hudson's Richmond courtroom. The hearing is on the heels of yesterday's decision by Federal District Judge Roger Vinson in Florida to allow the 20 State Law Suit to proceed as well (21StateLawsuit.com). While that case is behind the Eastern District of Virginia's famous "Rocket Docket," and is where the Virginia case stood about a month ago, the fact that the weight of 21 states now are at full trial over the constitutionality of Obamacare was welcome news to Attoreny General Cuccinelli (Washington Post Virginia Politics Blog). We will be there in the courtroom Monday (or, most likely, in a satellite room with a video feed), and provide our impressions later in the day (electronic equipment is not permitted in the courtroom). So please check in with us. We also hope to be at any post hearing news conference the attorney general may hold, just as we were after the hearing on the federal government's motion to dismiss in July. We were the only media anywhere to post video of the entire news conference (see it here, as relevant points to Monday's hearing were discussed).
We expect Attorney General Cuccinelli will be on several television interview shows throughout Monday afternoon and evening, so there will be plenty of opportunity to hear straight from the source. In the meantime, here's a video of a speech he made at a freedom rally in D.C. last month:
Getting his day in court. More precisely, the people getting their day in court against the government's unprecedented power grab over individual liberty.
Virginia, Cuccinelli Win Round One Against ObamaCare!Aug. 01, 2010
As we were one of the first to report this morning, Virginia, through Attorney General Ken Cuccinelli (see news release), and despite what almost every liberal pundit and legislator has prognosticated, won round one in his lawsuit against the constitutionality of the new federal health care takeover law. Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, in Richmond, ruled against the Department of Justice's motion to dismiss the case because Virginia, it alleged on several fronts, has no standing. Judge Hudson rejected those arguments and the case now will go to full trial, on October 18 in Richmond (see Washington Post Virginia Politics Blog). In his 32-page ruling (see here) Judge Hudson wrote:
Although this lawsuit has the collateral effect of protecting the individual interests of the citizens of the Commonwealth of Virginia, its primary articulated objective is to defend the Virginia Health Care Freedom Act from the conflicting effect of an allegedly unconstitutional federal law. Despite its declaratory nature, it is a lawfully-enacted part of the laws of Virginia. The purported transparent legislative intent underlying its enactment is irrelevant. The mere existence of the lawfully-enacted [Virginia] statute is sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it.
Ouch! Quite smackdown to the feds' several arguments as well as to left-wing pundits and activists who repeatedly said Attorney General Cuccinelli had no standing, no right, no business and no chance in filing this suit. Judge Hudson's opinion, boiled down, is exactly what the AG has said all along: That he took an oath to defend not only the U.S. Constitution, but the Virginia Constitution and the laws of the commonwealth. Judge Hudson also found that even though the federal insurance mandate doesn't take effect until 2014, the case is "ripe" because a conflict of state and federal laws is certain to occur. All are obvious reasons to proceed to trial to anyone with commonsense, regardless of political persuasion, except the hyper left.
At issue at the trial on October 18 is whether the federal government can order individuals to buy something (in this case, health insurance) in contradiction to Virginia law, the Virginia Health Care Freedom Act (see text). Then, it will be the AG on the offensive, asking for summary judgment. In the hearing to dismiss on July 1, the Department of Justice said it was not invoking the Commerce Clause of the U.S. Constitution, as Congress itself said it was, but rather its taxing authority, which made for some pretty humorous and pretzel twisting arguments from the government's lawyers.
For what it's worth: At the conclusion of the hearing on the feds' motion to dismiss, Judge Hudson promised a decision by the last week of July. When it didn't come last week, it was widely expected to come this morning. We were notified of the ruling around 10:30. One tip that something was up was a promo last night on the Fox News Channel that the AG would be on On The Record with Greta Van Susteran (hear her commentary) tonight at 10:00. Odds are that it won't be the only show upon which he will appear.
In the meantime, we were the only media, new or old, to have Attorney General Cuccinelli's entire July 1 post-hearing news conference. To see it, and hear more of his legal reasoning behind the case, click here.
As we said from the early days of this past General Assembly session, what Virginia was doing with the Health Care Freedom Act was historic. Today was another new chapter which, most likely, will have several more written.