Federal government responds to Virginia's lawsuit over health care law

RICHMOND, VA (May 24, 2010) - The federal government responded today to Virginia's lawsuit over the recently enacted federal health care law with a motion to dismiss the suit.

"We are still looking through the motion and 39-page brief that we received late Monday, but at initial glance, this is pretty close to what we expected," said Virginia Attorney General Ken Cuccinelli. 

In the motion to dismiss the suit, the federal government argues:

  • that as of matter of jurisdiction and procedure, Virginia has no right to bring this case now
  • that Congress has the authority under the Constitution's Commerce Clause to order Americans to buy health insurance
  • that the health insurance mandate is lawful under the taxing power of Congress.

Cuccinelli and his team look forward to responding to the motion to dismiss by June 7.  The government then has until June 22 to reply to Virginia's response.

"The federal government is forcing citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce via the Constitution's Commerce Clause.  We contend that if a person decides not to buy health insurance, that person - by definition - is not engaging in commerce, and should not be subject to a federal mandate," said Cuccinelli.

Cuccinelli argued, "Just being alive is not interstate commerce.  If it were, there would be no limit to the Commerce Clause and to Congress's authority to regulate everything we do.  If Congress has the power to force Americans to buy health insurance, then there's nothing to stop Congress from forcing us to buy any product."

In March, Virginia enacted the Virginia Health Care Freedom Act, which provides that the government cannot require Virginians to buy health insurance.   It was passed by an overwhelming bipartisan majority in the General Assembly (90 to 3 in the House and 25 to 15 in the Senate), and had the support of Governor Bob McDonnell.

The federal health care law, with its insurance mandate, creates a conflict of laws between the federal government and Virginia.  Since the attorney general of Virginia has a duty to defend validly enacted Virginia laws from any challenge, he filed suit in federal court seeking a declaration that the Virginia Health Care Freedom Act is constitutional and that Congress exceeded its constitutional authority by imposing the individual mandate.

The U.S. Constitution's Supremacy Clause usually allows federal law to trump state law.  But if a federal law is found unconstitutional while a conflicting state law is found constitutional, the state law will prevail.

The attorney general has offered support in the form of shared research to the other 20 states suing over the health care bill in Florida, but Virginia has not joined that case because of the direct conflict between Virginia's law and the federal law.  Virginia has chosen to defend a Virginia statute in a federal court in Virginia. 

The other duties of the attorney general's office will continue as normal during this case.  No attorneys have been taken off any other sections, such as public safety, consumer protection, or Medicaid fraud, to work on this lawsuit.

The case is the Commonwealth of Virginia v. Kathleen Sebelius.  It is in the U.S. District Court for the Eastern District of Virginia in Richmond.

Previous news releases on the case, as well as the text of Virginia's lawsuit, can be found at http://www.vaag.com/PRESS_RELEASES/index.html.

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