Feature: Virginia AG defends standing in healthcare reform case

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Virginia Attorney General Kenneth T. Cuccinelli, II
Image source: www.virginia.gov

The Commonwealth of Virginia responded this week to the federal government’s attempt to dismiss the state’s lawsuit against the new federal healthcare law in an attempt to move the case of Commonwealth of Virginia v. Kathleen Sebelius forward. Virginia Attorney General Kenneth T. Cuccinelli now awaits the July 1 court date that will determine whether his case has standing to challenge the constitutionality of the individual mandate in the healthcare reform bill under the Commerce Clause.

“Virginia’s sovereign interests are quite strong [to survive standing],” said Cuccinelli in an interview. “In every constitutional law challenge, there are two rounds. There’s always the motion to dismiss. That’s round one, and the second round is the merits of the case; in this case being the Commerce Clause discussion.”

The Commerce Clause is an enumerated power in the U.S. Constitution that states the U.S. Congress has the power “to regulate commerce with foreign nations, and among the several states and with the Indian tribes.”

In its motion to dismiss Virginia’s lawsuit, the federal government argued that Virginia lacks the standing to bring a suit, that the suit is premature and that the federal government has the power under the U.S. Constitution’s Commerce Clause to mandate that citizens must be covered by health insurance or pay a civil penalty.

“The U.S. has alleged that Virginia hasn’t been injured or if we’ve been injured, our injury isn’t ripe until January 1, 2014 when the individual mandate comes into play,” Cuccinelli stated.

“Standing means there has to be an actual case or controversy with an identifiable party,” Robert Roberts, JD, PhD, professor of political science at James Madison University in Harrisonburg, Va., said in an interview. “Cuccinelli is suing on behalf of the state and the idea that he can sue to protect the state law may not meet the standing requirements. Normally, what standing requires is that you have an identifiable person who has been hurt. To argue that the state of Virginia is going to be hurt by a mandate that individuals purchase health insurance is not at all clear.”

Citing Supreme Court precedent, Cuccinelli counters, “[We note very clearly in the response] that ripeness is not an issue when a matter is a pure dispute, as a pure matter of law that’s fully mature.” With the Virginia Healthcare Freedom Act slated to go into effect July 1 and the healthcare reform bill to become law in 2014, Cuccinelli stated that because of these certainties, “the simple matter of the delay and time of three and a half years does not, under Supreme Court precedent, give the U.S. a ripeness issue to knock Virginia’s case out.”

“Virginia has been injured because it is a sovereign entity in our constitutional system with a sovereign interest which has been infringed,” said Cuccinelli. “In particular, under the Supremacy Clause of the Constitution, the federal government’s healthcare bill would require Virginia to give way with respect to its Healthcare Freedom Act, which protects Virginians from a health insurance mandate. This is still an injury to the state as a sovereign entity.”

“We, therefore, have standing in this case,” Cuccinelli concluded.

Currently, an oral argument on the motion to dismiss is set for July 1 at 10 a.m. in the U.S. Federal District Court for the Eastern District of Virginia in Richmond before U.S. District Court Judge Henry E. Hudson.

If the case is dismissed on the grounds of ripeness, then the case is dead, according to Roberts. “Then, the state will have to wait until the federal government tries to collect the fee from someone and then that person will have standing. Once individuals are forced to pay and once state government is forced to cover more Medicaid, they clearly have grounds to sue,” the professor said.

In the historical context of the Commerce Clause, Cuccinelli stated that this case is “probably going to help set down some of the rules about whether or not non-economic activity or, in this case, inactivity...can be regulated under the Commerce Clause."

The U.S. has until June 22 to reply to Virginia’s response, Cuccinelli stated. If Virginia’s case is not dismissed, a summary judgment hearing is scheduled for Oct. 18.