The weak suit that could undermine challenges to the health care law
By Norman Leahy | Friday, August 19th, 2011 | Policy, VirginiaKen 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.
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About the author
Norm Leahy has written about Virginia and national politics online since 2002, beginning with One Man's Trash (OMT), and continuing through Bacon's Rebellion (both the blog and the e-zine), Sic Semper Tyrannis, NBC12's Decision Virginia, Richmond.com and Tertium Quids. He is the chief blogger at "The Score" and a producer of "The Score" radio show as well as being a Washington Examiner contributor.
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10 Responses to "The weak suit that could undermine challenges to the health care law"
Oh good grief. Now even Cooch has joined the handwringers. Let’s grow up. The legal route was always unlikely to eradicate Obamacare. I never thought it was even that great an approach since it diverts pressure from legislative repeal With Obama in office he will continue on with everything no matter what. The individual mandate could be put on the shelf and some other ruse could be used which would have to be re-litigated. If the Repubs don’t kick Obama out in 2012 then get ready for single payer and HHS Sec Sebelius checking your political contributions before giving you a waiver or some expensive medical treatment. Also get ready to go to Costa Rica where the US health care system will relocate.
Yes Valentinus, you can’t wait to be rid of Health care reform so your policy can be cancelled because you used it, you can be denied coverage because you used it before, you can’t cover your college aged children, and you had to pay double digit rate increases yearly for the same or worse coverage. Ah yes, the good old days.
@valentinus- I disagree. I actually think the legal challenge is likely to prevail. That is to say, I think the Supreme Court will declare the individual mandate to be unconstitutional since the only argument in favor of it is a policy argument, and conservative majority on the Supreme Court will side with the Constitution. I also think the Supreme Court will rule that the individual mandate is necessary to the entire ObamaCare scheme and will therefore invalidate the entire law. Whether the Court does so in response to the Virginia case or the Florida case or both combined remains to be seen, but I do think the S. Ct. will agree with our arguments. And, btw, with Obama in office, Anthony Kennedy has moved more firmly back into the conservative camp, and I think he’ll be with us on this. It helps that Obama alienated the conservative justices by lying trying to humiliate them by lying about their ruling in the campaign finance case a couple of years ago.
I don’t think the Supreme Court will have the antimony to let the health care law stand. Beyond the public pressure to strike it down, there is the small consideration that the law is so blatantly unconstitutional that the Supremes would have to do triple backflips with a twist to BS their way out of ruling against it. I don’t think they’d dare.
The linchpin in Obamacare is the “individual mandate” that extorts money from businesses and employees to prop up this top-down intergenerational Ponzi scheme to pay premiums for those aren’t, and make healthcare decisions that uniformly apply to all of us no matter what our individual circumstance may be. SCOTUS is supposed to interpret the Constitution relative to the “individual mandate” in a bubble of objectivity, but unlike other matters before it which tend to be relatively static and have a narrower scope, this is an intergenerational issue that reaches from the Federal Government through all “57” states down to the individual. Since it is the current law, Obamacare is already wreaking havoc on state governments, businesses and individuals as the Circuit courts render conflicting and inconsistent rulings. As this plays out there are seismic shifts taking place in the health care industry across all states where providers are dropping coverage or increasing premiums to employers with flow down increases to the employees on the order of 20% to 50% leading up to the 2013 phase of Obamacare. Some states such as Oklahoma have returned funding from HHS for setting up prototype “health exchanges” and most states haven’t started or are way behind implementing the “health exchange” unfunded mandate.
If you think the vermin who are participating in “flash mobs” against whites, the “rich” and businesses are bad, if the Obamacare individual mandate is allowed to stand, there will be intergenerational economic “flash mobs” on a scale that will rival our Revolution and Civil War combined. And they have great Dentists in Costa Rica.
GAO Report Provides Nine Alternatives to Individual Mandate
KF ,
I would agree with you Only if the SCOTUS invalidates the Entire law. I see very little chance of them doing that but I hope you are right. Otherwise even if the individual mandate is thrown out the Obama Admin will find some backdoor finagle. They will continue with all the bureaucratic expansion and rule making designed to cripple the insurance industry to force single payer. If Obama is re-elected this strategy will go into overdrive. Blue states will adopt whatever Obama tells them to adopt further squeezing insurance companies. The establishment Repubs are not as gungho against Obamacare style healthcare as you seem to think. Look at Romney. Even Obama said that it would take 10 years to get to single payer. If he is reelected it will certainly happen.
Liberals have always played the court angle well. They pick good cases with good facts and try to file in the most favorable jurisdiction. In recent episodes, the contrive with the Government as they have in California and with Obama. They get a favorable judgement in their favorable jurisdiction and then the Government says they have no basis for appeal and let the judgmenet stand and then everyone says this is the law of the land and the court decision must be respected, even if you diagree with it.
This has been done with with homsexual issues involving gay marriage (Calf Prop 8), Don’t Ask/Don’t Tell, and the Defense of Marriage Act.
I am not familiar with the 6th Cir case, but I would not put it past Obamah to attempt to file a contrived challenge in a favorable jurisdiction in order to frame the appeal in their favor and obtain appeal decisions that are binding precedent in the other cases.
Hopefully the Supremes will get it right this time.
If you think that this seems like a short, pointless post so that I can see if I can figure out how to indent text you might be smarter than you look //grin//.
I am against Obamah care, but as far as the individual mandate, that is wise policy. Though we hem and haw about it being unconstitutional, everyone ought to have health insurance. Young people do not want to pay the $100 to $150 it would cost to buy insurance when they come off their parents plan. Instead, they want to take that money and use it toward a car payment or something else. When or if they get sick or hurt and have a major medical issue, regardless of how they felt about the issue before, they are the first to stand up and say that this is an expense that ought to be covered by the Government. Such people do get medical treatment and then do not pay for it, with those costs being passed along to the rest of us who do pay for insurance. If everyone would maintain coverage, coverage would be cheaper for everyone and healthcare costs would be lower.
I am libertarian in nature and agree that it should be a choice. That is all well fine and good as long as people live with that choice. The other part of the libertarian equation is that when someone gets hurt or sick and they do not have insurance, they either pay or they are screwed. Let that be a test program for a while and then maybe more folks would pay for insurance coverage. You all know that this is not going to happen.
If we were to be true to this principle, we would apply the same logic to automobile insurance. Why require it? If someone has an accident, just let them be liable to the injured party. Let it be a private civil matter between the two parties. Keep Government out of it, except for redress to the civil courts. The reason we do not deregulate the requirement to maintain liability insurance for automobiles is that scofflaws would not have insurance and would injure property and persons without a care in the world about paying for the damages. The irony of this is that this is exactly what is going on with the health insurance issue.
Most young professionals recognize the value of health insurance. It is prudent to purchase and allows access to health care without risk to personal fortune. The common redneck, trailer inhabitant, urban yute, welfare queen, illegal immigrant, dope smokers, and disco don could care less about being personally liable for health care costs. If they get sick or hurt, they are covered. They have nothing and can be sued for nothing. They don’t care. The rednecks, trailer trash, and some of the disco dons and dope smokers vote Republican and still do not maintain health insurance. It is not because they are denying the responsibility, but rather they think they do not need health insurance at this time. This is something they can pay or later when they will need health care.
Insurance only works if people buy it before they need it and share the costs among a broad pool of customers. You cannot wait until you get sick or hurt to purchase health insurance. At that point, they are all over the issue and are willing to pay their $150 per month. If I had my way, I say spit on them. I would say let them suffer, but I am not that cruel – this is why we also need medical marijuana. Heck, throw in medical heroin and cocaine.
The problem with the healthcare debate is that too many people think that insurance companies should be required to cover pre-existing conditions. The only way the system will work is if most people maintain health insurance in the same manner as they do auto insurance. One alternative would be a low prohibiting hospitals from passing along the cost for medical care provided to indigent (anyone who doesn’t pay) persons.
We are using this individual mandate as our silver bullet against Obmah Care, but to be honest, it is the best part of Obamah Care. Think about it. Do you have health insurance?
I would like to hear from any of you who do not have health insurance and why? What is your plan if you are sick or injured?
William,
It would cost a twenty something a minimum $100 to get a healthcare insurance Waiver in 2014 but that’s a teaser rate. It goes up to $2000 or more later. But that is not paying for health insurance. That’s a fee for Not obeying the mandate. Obviously Dems will say that if you don’t pay income tax (48% of Americans) then you shouldn’t have to pay for healthcare insurance. Warren Buffett will come out and say that he is fine with the idea of paying someone else’s healthcare right after he gets a big check from the govt to compensate him 10 times over.
As with most leftist hysteria, can’t we try less drastic reforms such as tort reform, more competition, higher copays etc and see how they work before we move on to the draconian?
I think most agree with Romney regardless of whether they like Romneycare as a program that the states have the Constitutional authority to impose the mandate. But even with auto insurance if you don’t drive a car you don’t have to pay for it. In many states you can pay an uninsured drivers fee in lieu of insurance. If a state imposed a requirement that a fee had to be paid after a person’s healthcare debts exceeded some threshold that would be fair seeming. If they paid off their debts the fee would be reimbursed. If they can pay their bills why should they be forced to buy insurance? They probably could negotiate lower fees for cash payment. What I know is that the Dems will set waivers at higher and higher income thresholds. This way their dependent class never pays anything and their costs are shifted to a few individuals and businesses. (They balance the system by delaying or denying treatment ie rationing regardless of coverage.) People have to have Some contact with the costs of products and services. Co-pays should be higher and no one should be excluded. The States could set up some coverage options for the unemployed. People below the poverty line can be asked to pay a reduced fee.
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