- The Washington Times - Friday, July 2, 2010


Virginia Attorney General Ken Cuccinelli continued his valiant fight in federal court Thursday to keep alive his lawsuit against the new Obamacare law. It is a fight that not just Virginians, but all Americans, should hope he wins.

The Old Dominion has passed a law to protect residents from the mandate to buy health insurance. Without a mandate, much of Obamacare falls apart. In defending the state’s power to pass such a law, Mr. Cuccinelli argues that the Obamacare mandates are unconstitutional. The Obama administration, for its part, wants to avoid any constitutional examination of the mandates. President Obama says the state has no right to enact such a law - and that if the law is illegitimate, the state has no legal standing to file its suit. The administration thus moved to dismiss the whole suit before its merits could even be considered. Mr. Cuccinelli’s court appearance Thursday was to argue against dismissal.

In his brief, Mr. Cuccinelli made a strong case based on both the language of the Constitution and Supreme Court precedent. He said Virginia was not trying to nullify a federal law but instead claiming the sovereign power to challenge the mandates through the legitimate means of the courts. He cited Justice Sandra Day O’Connor’s decision in the 1992 case of New York v. United States: “At least as far back as Martin v. Hunter’s Lessee (1816), the Court has resolved questions ‘of great importance and delicacy’ in determining whether particular sovereign powers have been granted by the Constitution to the Federal Government or have been retained by the States.”

Mr. Cuccinelli could have quoted another part of Justice O’Connor’s decision, in which she wrote it would be illegal for the federal government to “‘commandeer’ state governments into the service of federal regulatory purposes, and would … be inconsistent with the Constitution’s division of authority between federal and state governments.”

“Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid,” Virginia’s attorney general explained to the press. “One of those decisions made the commonwealth forego more than $100 million in federal money.” In short, the federal government is commandeering state governments, while forcing the states’ citizens to buy a product they may not want.

On behalf of Mr. Cuccinelli’s suit, Virginia Solicitor General E. Duncan Getchell Jr. said to the court, “The government can’t draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause.” This is the same issue that Sen. Tom Coburn, Oklahoma Republican, was exploring when he asked Supreme Court nominee Elena Kagan if Congress has the power to force people to eat their veggies, to which Ms. Kagan - frighteningly - said Congress does have such power. If a state has no standing, on behalf of its citizens, to challenge such abusive federal power trips, then both the state and the citizens are at the mercy of a federal monster that knows no bounds.

Federal District Judge Henry E. Hudson should allow the lawsuit to continue so these fundamental issues of freedom can be fully aired in court.



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