COMMONWEALTH of VIRGINIA Office of the Attorney General Kenneth T. Cuccinelli, II Attorney General 900 East Main Street Richmond, Virginia 23219

FOR IMMEDIATE RELEASE

Virginia responds to feds’ attempt to dismiss health care suit

RICHMOND (June 7, 2010) — Virginia has responded to the federal government’s attempt to dismiss the state’s lawsuit against the new federal health care law, Virginia Attorney General Ken Cuccinelli announced today.

In its motion to the court to dismiss Virginia’s lawsuit, the federal government argued that Virginia lacks the standing to bring a suit, that the suit is premature, and that the federal government has the power under the U.S. Constitution’s Commerce Clause to mandate that citizens must be covered by health insurance or pay a civil penalty. The government also made alternative arguments based upon its taxing power and the Necessary and Proper Clause.

“If the government prevails and Congress may use the Commerce Clause to order Americans to buy private health insurance, then Congress will have been granted a virtually unlimited power to order you to buy anything. That would amount to the end of federalism and our more than 220 years of constitutional government,” the attorney general said.

The oral arguments on the motion to dismiss are July 1. If Virginia’s case is not dismissed and moves forward, a summary judgment hearing is scheduled for October 18.

Here is a brief summary of some of the arguments for and against the motion to dismiss:

Federal government’s arguments to dismiss the case Virginia’s response Virginia is not injured by the federal health care law Because the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act) under the Constitution’s Supremacy Clause, Virginia’s sovereign interests have been injured Because the mandate doesn’t take effect until 2014, the case is not “ripe” 1) Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this does not prohibit the suit from being brought in the present 2) Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid. One of those decisions made the commonwealth forego more than $100 million in federal money. Virginia’s suit is barred by the Anti-Injunction Act The act does not apply to states under these circumstances, because Virginia’s action falls within an exception to the act that has been recognized by the Supreme Court The government has the power under the Constitution’s Commerce Clause to mandate the purchase of individual health insurance 1) The federal government’s argument is contrary to the text of the Constitution 2) The federal government’s argument is contrary to the meaning of the words of the Commerce Clause as understood by the Founders 3) The federal government’s argument is contrary to the historical context of the nation’s founding. When Great Britain instituted a tax on tea, the colonists’ response was to boycott and to not buy tea. Parliament had the power to regulate commerce, but even it did not attempt to force colonists to buy the taxed product. 4) The federal government’s argument is contrary to the traditional uses of the Commerce Clause. The clause has always been used to regulate economic activity; never inactivity. 5) The federal government’s argument is contrary to the precedent of the U.S. Supreme Court. The Court has set outer limits to the reaches of the Commerce Clause, including in cases such as Lopez and Morrison, saying that the clause must have principled limits, otherwise the federal government essentially would have unlimited power, rather than the limited powers enumerated in the Constitution. Even if refusing to buy insurance is not commerce, the government can still force people to buy health insurance using the Constitution’s Necessary and Proper Clause. 1) Since 1819, the Supreme Court has held that any use of the Necessary and Proper Clause must be consistent with both “the letter and spirit” of the Constitution. Any interpretation that would destroy the federal form of government (where federal power is limited only to those powers enumerated in the Constitution, with remaining powers reserved to the states and the people) is not allowed under that standard. 2) In May, the Supreme Court decided Comstock. The Court adopted a historical approach to the use of the Necessary and Proper Clause. Because the mandate is utterly unprecedented, it is unlikely to be upheld under a historical approach. Even if the government cannot win using the Commerce Clause and Necessary and Proper Clause arguments, the federal health insurance mandate can be justified under the government’s taxing authority. 1) The penalty for not buying insurance is not a tax. Congress called it a “penalty” and claimed authority to act only under the Commerce Clause. To argue otherwise now ignores what Congress actually did. 2) A penalty for inaction is not a tax of any kind known to the Constitution, when judged historically.

You can find a copy of the brief and all its arguments online at

http://www.vaag.com/PRESS_RELEASES/Cuccinelli/PLAINTIFF’S%20-%20Mem%20in%20Opp%20to%20MTD%20-%20FINAL%206710%20-%20FILED.pdf

Hearing schedule

The following hearing schedule has been adopted:

Oral argument on Motion to Dismiss: July 1, 2010, at 10:00 a.m. U.S. Federal District Court for the Eastern District of Virginia, in Richmond.

If Virginia’s case is not dismissed, a summary judgment hearing is scheduled for October 18, 2010, at 9:00 a.m.