Evoking the Continental Congress and Alexander Hamilton – and referencing Sen. Scott Brown’s election in Massachusetts – Virginia Attorney General Ken Cuccinelli emerged from a federal courtroom today sounding confident that the U.S. Supreme Court will ultimately find the Affordable Care Act to be unconstitutional.
Cuccinelli is leading one of several lawsuits arguing that the federal government does not have the authority to fine individuals who don’t maintain credible health insurance, a central tenet of the new health reform law. Appearing before U.S. District Judge Henry E. Hudson, appointed by George W. Bush, Cuccinelli and lawyers representing the Obama Administration presented their arguments for and against the individual mandate. Cuccinelli said if the judge decides the provision violates the Constitution, it should strike down the entire Affordable Care Act. Cuccinelli said at a press conference afterward that the legislation behind the law would not have passed without the individual mandate.
Hudson indicated he would rule on the case by the end of the year. Whichever side loses will then appeal the decision to the Fourth Circuit and then, most likely, to the Supreme Court. If Hudson does rule the way Cuccinelli argued he should, implementation of the Affordable Care Act would cease unless Hudson or another judge issues a stay pending an appeal.
“This case is about protecting liberty,” Cuccinelli told reporters. “It’s about Virginia attempting to put the federal government back inside the constitutional fence.” He warned that if the individual mandate is allowed to stand, “the government will be granted unlimited power to force you to buy anything,” not just health insurance.
Earlier this month, a federal judge in Michigan – faced with a similar lawsuit – ruled that the individual mandate is constitutional and within federal power granted by the commerce clause. A federal judge in Florida will hear arguments on yet another similar suit in December.
Cuccinelli cited Democratic contentions that the individual mandate penalty is not technically a tax as proof that the provision is not constitutional. (The federal government has the power to tax.) It’s true that Democrats made statements like this during the health care debate and Administration lawyers have ignored this rhetoric in the face of constitutional challenges. See Robert Pear in the New York Times for more.
Although attorneys general and governors in other states are challenging the Affordable Care Act, Cuccinelli has emerged as a frontman in the fight to stop the law in its tracks. A Tea Party darling who speaks often of the Founding Fathers, Cuccinelli asserted today that’s he’s standing in the way of a federal government that’s moving far beyond the powers it was granted by the Constitution. “What we’re doing today is what the Founding Fathers expected from states,” he said.
When asked by a reporter to react to charges his lawsuit is purely political – the individual mandate is the most unpopular piece of the Affordable Care Act, after all – Cuccinelli said, “Nothing that we do in an office run by an elected official will go unquestioned from a political perspective…I expect that discussion will go on for years.”
It’s important to remember that despite all the activity about these lawsuits, no judge has yet said anything in the Affordable Care Act violates the constitution. The only final ruling issued so far came from Judge George Steeh of Michigan, who was appointed by Bill Clinton and who argued the individual mandate is constitutional.
