The weak suit that could undermine challenges to the health care law

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.

9 Responses to The weak suit that could undermine challenges to the health care law

  1. I would suspect the Supreme Court would decide multiple cases at once or, at least, in a coordinated manner.

  2. are we saying that the Feds cannot find any way at all (like through the tax code) to encourage people to have insurance?

    At some point – the Republicans get tossed out or suffer enough losses to lose control of the house/senate and the tax code get’s updated so that everyone gets a credit if they have basic insurance.

    Just like right now – if you have a job – you automatically qualify for the $400 make-work-pay credit.

    Many, many people who otherwise would owe taxes, end up not owing money or even getting a refund.

    ObamaCare might have made a mistake in choosing this particular way to do the law but I have no doubt that just like with solar, home mortgages, investment losses you can write off.. that they could – for instance, lower the thresholds for what you could write off for medical expenses – at the same time taking away the tax-free status of company-provided health care insurance.

    they just skinned this cat not the right way.

    and the only way – it get stopped permanently is if the Republicans stay in charge from now to whenever.

  3. and here’s the more relevant point. We KNOW we do health care wrong in this country. We KNOW that we pay twice as much per capita and we score near the bottom on life expectancy and infant deaths.

    We had two Presidents attempt to do something about it – Clinton and Obama and both times the Republicans said it was the wrong approach.

    Promising a better approach after beating Clinton – their sole accomplishment under Bush was to ADD TO THE deficit in entitlements with a big Pharma give away and Medicare Advantage – subsidizing Medicare gap insurance.

    Now we have the repeal and replace idiots and folks like Cucinnelli that instead of arguing that there is a better path and advocating for that better way (as they try to kill this path).. they are, instead, all opposition.. all committed to killing ObamaCare and no alternatives of their own other than to cut off health care to the indigent and Medicare while doing nothing what-so-ever about it with regard to private sector – including all the health care that Local, State and Federal govt pay for via taxes.

    Localities in Va pay, on average about $5000 per kid and a significant amount of that money goes for health care for teachers ( deputies, fire/ems, and other county employees).

    health care costs are a major reason that employers are not hiring now… and prefer to outsource, hire part-time without benefits and hire 3rd party/contract that also provides no health care.

    So what exactly is the Republican, Bob McDonnell, Cuccinelli plan for health care in Va?

    they have no plan.. it’s called.. run away from the problem…

  4. John McCain called for a limit on the tax-free status of employer-paid health insurance, and the Democrats and Obama attacked it. The GOP pushed for tort reform, but the Democrats and Obama killed it. The GOP pushed for allowing individuals to purchase health insurance across state lines, but the Democrats and Obama killed it. Yep, no alternatives to Obamacare.

  5. The Republicans …after they killed Clinton’s attempt were in control of both houses of Congress and the Presidency – and what did they do?

    the problem with the Republicans is they do not deliver even when they have the opportunity to.

    tort reform won’t fix health care and neither will allowing them to purchase across state lines but think about what it would take to make that happen – you’d have to have a Federal law telling the states that they would be forced to do what the Feds said instead of what they wanted to do. It was either a cynical ploy they knew would never be accepted by the states or worse.

    the basic problem is that some folks won’t buy insurance … those same folks would not buy car insurance nor homeowners insurance if they were not forced to by the states and mortgage companies.

    then when they need health care – they go to the ERs and sign up for MedicAid – both which are paid for by others.

    there is no unified “replace” that is the Republican alternative. there are “ideas” .. and that’s about it.

    It’s one thing to oppose what you don’t like or want but when your alternative is “ideas” from various individuals none of which would deal with the real problem.

    The Republicans proposal after they defeated Clinton was for an individual mandate and agreed to by folks like Tom delay and Newt Gingrich.

    that was 1993. In 2000 when they had the Presidency and both houses of Congress what happened to their proposal.

    the Republicans have zero credibility on health care after do nothing under Bush and then trying to kill Medicare.

    When you look, in general, as to what the Republican strategy is these days ..it’s basically opposition, with no alternatives….. do it their way or they’ll shut down /vandalize government….

    It would be one thing if Bob McDonnell had a viable proposal for health care in Virginia …. that would empower Coochie… and undermine the Fed … but the man has nothing to say other than we should kill ObamaCare.

    that’s not governance. If the man is opposed to the govt being involved in health care at all – he should say so – and he and Cooch should be willing to tell the truth as their positions and stand on that for election.

    Instead, Republicans hide … won’t say what they support … just obfuscate…hoping that they’ll take over govt at some point and then …do nothing.. because at the heart of this – they fundamentally do not believe that govt should be involved in health care to start with but they won’t face the voters with that truth.

  6. As someone who’s currently briefing a case for the Supreme Court (Knox v. SEIU Local 1000, No. 10-1121), I suspect that the AG’s analysis is spot on. It took me nearly ten years in Alaska to overcome an adverse ruling in a case litigated by someone out of his depth.

    I also suspect that a large portion of Virginia’s cert. petition is already written.

  7. The dens should have included sales acrolshs sthate linked bpecjause it would make little difference. It uwould have initiated a race to the bottom with insurors offering near worthless policies in the
    state with the weakest regulation. The result would be federal regulation of interstate commerce.

    On fox, an interviewer was asking a business analyst what could be done to improve the Jobs Outlook. The host was blindsided when the answer came back to fix health care. Much host spluttering before cutting to a break.

  8. As I’ve said more than once. Hardly anyone is expecting ObamaCare to be the last word in attempts to deal with health care but what the opposition has no real alternative approach – that enough of the opposition agrees to – to make it a viable choice.

    The “opposition” is all over the map and the opposition itself cannot agree.

    So what we have is strident opposition to ObamaCare and a panoply of various “ideas” of which the primary one seems to be tort reform which we already have in the form of caps in Va and other states but also further agreement by those who support ObamaCare….

    and.. tort reform has never been a poison pill to most of those who want ObamaCare or something else. It’s used as an excuse by those who oppose ObamaCare but have no real alternate proposal either.

    so we have them all in rah rah mode to kill ObamaCare and no alternative that they would actually seek to replace it with.

    And that pretty much sums of the MO of the Republican Party these days on almsot any contentious issue being confronted.

    They are opposed. They no real alternate proposal. And they will basically tie up the process of moving anything forward is they do not agree with any part of it.

    We hear that this is what the founding fathers intended. I don’t buy it. ObamaCare is the poster child for a Republican Party that basically has evaded responsibility for the problem.

    In place of responsibility – their oppose, obfuscate, obstruct, and if the truth be known – do not believe the govt should be involved in health care to start with.

    I can accept that. Let the Republicans make their stand on their opposition to the govt being involved in health care – and let the electorate decide if they agree or disagree.

    But the Republicans as a group will not be honest with the American people as to their opposition to the govt being involved in health care.

    this is how we get their strident opposition to ObamaCare and no reasonable alternative that the Republican party does support.

    It’s an unprincipled and unconscionable position that breeds hypocrisy.

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