A federal judge indicated he could rule on the constitutionality of the federal health care law by the end of the year, after hearing arguments recently in Virginia’s suit challenging the law and its individual insurance mandate. Virginia’s is the first state case to be heard on the merits of its arguments. Virginia Attorney General Ken Cuccinelli is asking for an injunction against the entire health care act if Judge Henry Hudson finds that the individual mandate is unconstitutional.
The Virginia case rests on a simple premise: That the federal government’s attempt to stretch the Constitution’s Commerce Clause to allow it to force individuals to buy a private product – private health insurance – is unconstitutional.
“The individual insurance mandate represents an unprecedented and unconstitutional exercise of federal power because it penalizes Americans for not engaging in commerce. In other words, you can get fined for doing nothing,” Cuccinelli said following the hearing.
“This case is not about health care. This case is about protecting our liberty. This case is about the states providing a check and balance to the federal government, which is exceeding the power we, the people, gave it through the Constitution,” Cuccinelli continued. “If we lose this fight and the federal government is allowed to cross this line, Congress will be granted a virtually unlimited power to order you to buy anything.”
“That is not rhetoric. That is reality,” he said.
Cuccinelli said that the Constitution prescribes this kind of court action between the state and federal governments when there is a debate about the law. “We all remember learning in school about government’s checks and balances. The whole reason that it was so important – and why we still remember that term today – is because checks and balances keep any part of government from getting so powerful that you and I – the people who give it that power – cannot control it anymore,” he said.
“The Founding Fathers not only created checks and balances among the branches of government, but also between the states and the federal government. And from time to time, it is up to the states to remind the federal government of its constitutional bounds and to push back when it overreaches its authority. What we are doing today is precisely what the Constitution prescribes.”
One of the federal government’s arguments is that it has the authority to force individuals to buy private health insurance because if individuals do not buy it, that is an economic decision, and the government argues that decision will affect others because those individuals will inevitably use publicly funded health care later.
Cuccinelli said that same reasoning could be used to claim that the government has the authority to force you to buy a car, because if you do not buy a car, you are making an economic decision that will affect others because you will inevitably use publicly subsidized busses later. “And the government will not only have the authority to tell you to buy a car, but what kind of car and what features are required,” the attorney general said.
Three former U.S. attorneys general – Ed Meese, Dick Thornburgh, and William Barr – wrote an amicus brief in support of Cuccinelli’s suit. “In all their years of defending the laws of the federal government, they have not seen such reasoning to arrive at the conclusion that the government has the power to oblige people to buy a product and to impose penalties if they don’t. The former AGs called that reasoning nonsense,” stated Cuccinelli.
When it debated the health care law, Congress said the fine for not buying government-approved health insurance was a, “penalty, not a tax.” President Obama has also referred repeatedly to the mandate as a “penalty” as well. The law that was passed was also written such that the mandate was decribed as a penalty, not a tax. Congress then claimed that the authority to force the mandate on citizens came from the Constitution’s Commerce Clause.
For more than 220 years, the Commerce Clause has been applied to acts of commerce voluntarily entered into by individuals. “If someone is not buying insurance, then – by definition – he is not participating in commerce. How, then, can the government use the Commerce Clause to regulate his non-commerce?” Cuccinelli asked rhetorically.
In the event it loses on its Commerce Clause argument, the administration has created a fallback argument that the penalty for failing to obtain health insurance is in fact a tax. “They are creating a fallback argument to attempt to claim the federal government can use its taxing authority to save the bill. To do that, they have to argue that the penalty is a tax – exactly the opposite of what they said when they passed the law. But what they passed is clearly not a tax; it is a penalty,” Cuccinelli said.
Judge Hudson indicated he would likely issue his ruling by the end of the year. Cuccinelli has asked the judge to issue an injunction to keep the government from implementing the federal health care act if he finds it unconstitutional.
Cuccinelli’s office argued in court on July 1 against the federal government’s motion to dismiss the commonwealth’s suit and won that round when Judge Hudson returned his decision on August 2 saying that the case could go forward. The most recent hearing was about the arguments over the constitutionality of the health care law.
