By Norm Leahy
Ken Cuccinelli is worried.
It’s not a familiar feeling for Virginia’s Attorney General. Mid-way through his first term in office, Cuccinelli has translated his firm conservative beliefs into a series of court cases challenging what he, and his supporters, sees as federal government excesses. So often has he taken the feds to court that Cuccinelli can joke about how many Obama Justice Department officials he knows.
But what has Virginia’s otherwise confident top lawyer concerned isn’t one of his court challenges, but a case rising out of the 6th Circuit Court of Appeals. In late June, a divided appeals court upheld the individual mandate that’s at the heart of the President’s health care law. But it’s more complicated than that. As Cuccinelli explained to me in an interview, Judge Jeffrey Sutton, appointed to the bench by George W. Bush, decided that the way the health care law is constructed might make it unconstitutional sometimes, but not in this particular case. Cuccinelli said that “This ruling is so narrow that I don’t know how much impact it’s going to have on other courts.”
But it was the first appellate court to rule in any of the 30 lawsuits currently pending against the health care law. Cuccinelli’s own case, Virginia v. Sebelius, was argued before the 4th Circuit Court of Appeals in Richmond three months ago.
The plaintiffs in the 6th Circuit case, the Thomas More Law Center and a group of individuals challenging the mandate, have filed an appeal to the United States Supreme Court. And that’s where Cuccinelli’s uneasiness begins.
“I am concerned about the 6th Circuit case because it has not been strongly argued by those plaintiffs.” Both the district and appeals court ruled against Thomas More’s challenge.
“For something this important, I’d like to see our side put its best foot forward,” Cuccinelli said. “I think we’ve demonstrated that we’ve got the best legal argument (in the Virginia case), and I’m comfortable with what’s come out of the Florida case in the 11th Circuit.
He should. Last week, the 11th Circuit Court of Appeals ruled that the individual mandate at the heart of the health care law was unconstitutional. At the same time, though, the court refused to invalidate the entire law. Federal District Court Judge Roger Vinson did just that earlier this year. Last December, District Court Judge Henry Hudson, who presided over the Cuccinelli lawsuit, held the individual mandate unconstitutional, but, like the 11th Circuit Court of Appeals, let the rest of the health care law stand.
There is one area where even courts siding with the Obama administration have been unanimous: none of them have bought the federal government’s argument that the financial penalty the law imposes on individuals for not buying health insurance is permissible under the Constitution’s grant of taxing power.
“Even Judge Sutton didn’t go along with that. And really, it’s at the core of our case, too, this notion that the federal government can basically force you to buy anything it deems necessary and impose a financial penalty on you if you don’t.”
Cuccinelli told me it’s possible the Supreme Court could ignore the appeal of the 6th Circuit ruling and wait until more appeals courts, like the 11th, have weighed-in. It’s also possible, he said, that the high court could take the 6th circuit appeal and then “reach down into the other appeals courts” and bring all the cases before it. Or it could have them run in parallel, or even decide to take them one at a time. “Nobody knows what they might do,” he said.
How might the Supremes rule? That’s another unknown. But when I asked Cuccinelli to address the calls on the right for Justice Elena Kagan, the former Obama administration Solicitor General, to recuse herself from any health care case that might reach the high court, he said there’s no indication she will do so. Earlier in the Virginia lawsuit, Cuccinelli’s office filed an appeal with the Supreme Court to take the case directly, skipping the court of appeals. The Supreme Court declined, but in doing so, Kagan made no move to remove herself from considering Virginia’s petition. That strongly indicates she will also be on the bench when a health care suit reaches the Supreme Court.
Cuccinelli expects a ruling “literally any day now” on the Virginia lawsuit and he stated that if he loses, he will appeal that “rather promptly” to the Supreme Court.