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Ken Cuccinelli, Virginia’s attorney general, stopped by Bedford, Thursday night, for a local Republican fundraiser.
It just happened that this was the same day a federal appeals court dismissed Virginia’s lawsuit challenging the constitutionality of the personal insurance mandate in President Obama’s healthcare law. A three judge panel ruled that the challenge lacked legal standing to bring the lawsuit.
“If we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court,” wrote Judge Diana Motz, one of the judges.
Cuccinelli suggested looking at the Federalist Papers, particularly Federalist Paper Number 39, written by James Madison.
“The states were expected to be a check on unconstitutional behavior by the federal government,” Cuccinelli said, stating Madison’s argument. “This court said just the opposite.”
Cuccinelli said that the purpose of the lawsuit is that Virginia has a code of laws and in that code is a state law that says that people can’t be forced to buy health insurance.
“We were defending that law,” Cuccinelli said.
Cuccinelli said that the court is saying that Virginia has no right to defend its law.
The law in question is the Virginia Healthcare Freedom Act. Cuccinelli said that Virginia used its sovereign authority to protect its citizens.
“No appellate court has ever denied a state the ability to defend its law,” Cuccinelli said, calling this court’s decision “unique.”
Cuccinelli said that this collides with the 10th Amendment.
Liberty University’s lawsuit, also challenging the constitutionality of the healthcare law, was also dismissed by the same three judge panel on the same day. This was by a 2-1 vote by the panel. Cuccinelli said that one judge found the penalty assessed for failure to purchase health insurance to be a tax.
“No judge in America until today had done it,” Cuccinelli said.
According to Cuccinelli, if this falls within the federal government’s tax power, then it would mean that the federal government can order citizens to do anything.
“That’s really radical,” he said.
Cuccinelli said that, when he ran for the attorney general’s office, he promised that he would push back if the federal government crossed Constitutional lines.
“We won it with a mandate to push back against the federal government,” he said.
Cuccinelli said that this lawsuit is about liberty, not healthcare, and he plans to take it on to the Supreme Court.
“This is going where we all expected it to end up, in the Supreme Court,” he said.
Cuccinelli said that his office isn’t always fighting the federal government. He described a recent encounter with U. S. Attorney General Eric Holder at a National Association of Attorneys General meeting.
“Now Ken, you haven’t sued me again, have you?” Holder jokingly asked Cuccinelli.
“Have you checked your Blackberry?” Cuccinelli replied.
“We have all sorts of business with the Department of Justice,” Cuccinelli commented. “Sometimes we are on the same side.”