4th Circuit Court of Appeals Rules Against Virginia Health Care Freedom Act
By Norman Leahy | Thursday, September 8th, 2011 | Policy, VirginiaThe 4th Circuit Court of Appeals has ruled against both Attorney General Ken Cuccinelli’s defense of Virginia’s Health Care Freedom Act and a case brought by Liberty University challenging the constitutionality of Patient Protection and Affordability Act (or Obamacare). The Liberty University opinion (found here) roughly states that the case isn’t ripe for a court hearing, as no one has yet been forced to pay a fine for not purchasing health insurance under the individual mandate portion of the law.
In the Attorney General’s lawsuit, the Appeals Court holds, oddly, that Virginia can prove no harm to itself and failed to provide a ‘concrete factual context’ for its challenge — and so lacks standing to bring suit (that opinion can be found here).
In a briefing I had with Cuccinelli’s office last month, I was told that it was extremely rare for states not to be granted standing to sue if a state statute was in question. A majority of the 4th Circuit saw it otherwise, holding that such a reading of precedent would allow a state to:
…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.
In other words, the states don’t really matter — unless they happen to be suing tobacco companies, financial firms, or other miscreants, in which case they are the pillars of federalism and are welcome to sue to their hearts’ content.
Is all gloom and doom for Obamacare foes? Hardly. A collection of states won their Obamacare challenge at both the district and appeals court level in the 11th Circuit earlier this summer. And Cuccinelli told me that a loss in the 4th Circuit would compel him to appeal to the Supreme Court “rather promptly.” Look for the AG’s office to be burning the midnight oil getting that appeal together.
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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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23 Responses to "4th Circuit Court of Appeals Rules Against Virginia Health Care Freedom Act"
Or Norm, you could have opined that there is no harm to Virginia nor to its citizens. That is, each citizen can get a policy with no restrictions for pre-existing conditions, they can cover their children up to age 26, they can’t be cancelled if they use the policy, and if they can’t afford it, they can get credits, and they can use new health care exchanges meant to reduce the cost of policies. These changes have been scored by the CBO as saving tax money, not increasing the deficit, so why was it again that the AG is wasting our precious tax money tilting at windmills?
Mile Barrett,
You might have opined that harm is caused to every Virginia citizen who chose to not buy health care insurance and live with the consequences.
I as wondering what finagle the court would use to get out of justifying Obamacare. Now we know.
The IRS is currently training and equipping thousands of agents for health care compliance enforcement. They are being given subpoena powers to seize real property and fine and arrest small business owners and individuals who do not comply with the arbitrary standards for “health insurance coverage” as determined by HHS. Woe be to those who are on the wrong side of this lawsuit as Obama’s “brown shirts” are manning up for battle against us SOBs.
Good comments from Jamie Radtke:
From Governor McDonnell:
I guess the Governor does not bother with the facts when he describes health care reform as…”an expensive and burdensome federal mandate on its citizens.” From my perspective, the CBO said it was less expensive than the system which had been in place, and frankly, for the users, it is certainly less burdensome than losing ones coverage if you used it, losing coverage for pre-existing conditions, or not being able to cover adult chilren up to age 26, or the burden of paying for those who received care but could not pay.
Neither Virginia nor its citizens may Challenge ObamaCare –
Delegate Bob Marshall, Health Care Freedom Act author responds
SEPTEMBER 8, 2011 — RICHMOND: CONTACT 703-853-4213
Three Democrat appointed federal judges ruled today that Virginia and its citizens have no rights they can vindicate in federal court, recalling to mind the actions of British King George III, who “abdicated Government here, by declaring us out of his Protection” (Declaration of Independence). Their decision is at fundamental odds with legitimate, constitutional government.
While the Federal Fourth Circuit acknowledged that “Congress has imposed a potentially ‘harsh regime’ on some taxpayers,” which poses questions of “unusual legal, economic and political significance,” it still held that neither states such as Virginia, nor citizens may legally challenge the imposition of a congressional statute which Congress’ own Research Service concludes has no precedent in American history.*
The three federal judges appointed by Presidents Obama and Clinton claim that “a state has no interest in the rights of its individual citizens sufficient to justify such an invasion of federal sovereignty.” (Virginia v. Sebelius)
It also dismissed individual Virginia citizens’ challenge (Liberty University v. Geithner) to the novelties of ObamaCare when the court inexplicably mischaracterized health insurance premiums paid to private companies as a tax.
Founding Father, and Federalist Paper author Alexander Hamilton, a delegate to both the Constitutional Convention and the ratifying convention in New York, affirmed states have the constitutional right to file suits in federal court to protect citizens. In my Fourth Circuit amicus brief I noted:
“… state legislatures will always be: ‘not only vigilant but suspicious and jealous guardians of the rights of the citizens, against encroachments from the Federal government [who] will constantly have their attention awake to the conduct of the national rules and will be ready enough, if anything improper appears, to sound the alarm to the people and not only to be the VOICE but if necessary the ARM of their discontent.’ [A. Hamilton, Federalist No. 26, G. Carey & J. McClellan, edts., The Federalist, p. 134 (1990) (capitalization original, bold added). See also A. Hamilton, Federalist No. 28, p. 141.]”
On April 4, 2011, I had filed an amicus brief in the Fourth Circuit which was joined in by several organizations on behalf of their members. The panel’s opinion paid no attention to the authorities in that brief (at page 4), including my reliance on Virginia James Madison’s view of the essential role of the state legislatures under the U.S. Constitution, a matter with which America’s “Father of the Constitution” had some familiarity: http://lawandfreedom.com/site/health/VA_v_Sebelius_Amicus.pdf
The role of the federal judiciary, in confronting Congressional and Presidential fidelity or departure from the Constitution, was made clear to the People during the ratification debates.
“[I]n the case Congress shall misconstrue … part of the Constitution, and exercise powers not warranted by its true meaning … the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts….” [J. Madison, Federalist No. 44, Id., p. 233.]
Even recent decisions of the Supreme Court have recognized the validity of dual sovereignty, residing both in the states and federal government.
Moreover, the panel ignored the Commonwealth’s enactment of the bill of which I was Chief Patron, the Virginia Health Care Freedom Act. The judges believed it irrelevant that the Democratic Virginia Senate and Republican Virginia House of Delegates enacted a law signed by the Governor, which established that the individual mandate could not be constitutionally imposed on Virginians.
For citizens to place confidence in the decisions of federal courts, the People must have confidence that the federal judiciary bases its decision in the text and original meaning of the U.S. Constitution, and not just in prior judicial decisions which may have departed from that text. The panel failed to do this and failed to even acknowledge that they understand the Founders’ original intent as expressed authoritatively by Alexander Hamilton and James Madison.
Of course, while I am disappointed, the panel’s opinion also disregarded other briefs against Obamacare filed by distinguished Americans such as former Attorney General Edwin Meese.
I urge Ken Cuccinelli, the distinguished Attorney General of the Commonwealth of Virginia, to promptly seek a review of the panel’s opinion by the entire Fourth Circuit, or by the U.S. Supreme Court, as he deems appropriate. There appears to be no reason to seek reconsideration by this panel which has strayed so far from the text of the Constitution in these decisions.
It would be unfortunate if politics had any part in this decision. The Fourth Circuit panel was truly remarkable, for it included only judges appointed by Democratic Presidents — including two new judges who had only recently been appointed by President Obama: Andre M. Davis of Maryland and James A. Wynn, Jr. of North Carolina. Diana Gribbon Motz of Maryland was appointed by President Clinton.
*************************************************************************
Bob Marshall is a senior member of the Virigina House of Delegates, elected in 1991. He represents the 13th District, which includes parts of Prince William and Loudoun Counties.
Website – http://delegatebob.com/ Twitter – http://twitter.com/#!/RobertGMarshall
*Commonwealth of Virginia v. Kathleen Sebelius (Motz 09/08/2011), and http://pacer.ca4.uscourts.gov/opinion.pdf/102347.P.pdf Liberty University v. Timothy Geithner (Motz 09/08/2011). http://pacer.ca4.uscourts.gov/opinion.pdf/102347.P.pdf
Mike Mike,
The CBO says what they are told to say. You know that. With the set of ridiculous assumptions they were forced to use the CBO was going to come up with the number the Dems had preconfigured. I could rig assumptions the same way to justify Defense, Medicare etc and show that they had less and less cost. The facts on the ground say otherwise. The only way that Obamacare can deliver universal coverage is by denying and delaying access. So everyone’s covered you just can’t get treated.
Tim J,
“The IRS is currently training and equipping thousands of agents for health care compliance enforcement. They are being given subpoena powers to seize real property and fine and arrest small business owners and individuals…”
Really? By any chance do you have a reputable news link to this rather astonishing news.
BTW, subpoena powers have nothing to do with the power to seize property, other than evidence, or to arrest or fine people.
Sorry valentinus, but it is clear that on this forum, when the CBO supports the consensus of republicans, they are the best thing going, but when they don’t, they are the scum of the earth. The Governor, clearly now thinking about arranging dinner with Governor Perry, can’t be bothered about thinking what is best for the health care of Virginians. He has made a bad mistake, one of the worst of his Governorship, in dismissing what is best for Virginians.
MB,
You never heard me bow to the CBO. And you didn’t factually dispute what I said so you agree with it. If the CBO were forced to use even standard accepted accounting then there would at least be a basis of comparison. This is not knocking the abilities of those in the CBO, just their integrity. Doesn’t matter who is the boss.
Roc, oh… lets see.. where to begin… some reporting on a report from the House Ways and Means Committee and then you can argue with the experts on the Hill about what it all means…
http://www.cnsnews.com/node/63181
http://dailycaller.com/2010/03/22/irs-looking-to-hiring-thousands-of-armed-tax-agents-to-enforce-health-care-laws/
and there are googles and googles of more reports and opinions if you google “IRS Health Care Enforcement”
Of course, there are leftist news sources and some administration testimony disputing this, but when do we start trusting these people to tell the truth when it concerns health care?
Oh, then there are those brand new assault shotguns for the IRS Criminal Investigation Division…
https://www.fbo.gov/index?s=opportunity&mode=form&id=8d3b076bd4de14bbda5aba699e80621d&tab=core&_cview=1&cck=1&au&ck
and even some new shotguns for the Department of Education:
https://www.fbo.gov/index?s=opportunity&mode=form&id=cb68cf9f3fa2fe18a83d1c3dee0039b2
By the way, haven’t you noticed? Everything is carted away as “evidence” these days. The CEO of Gibson Guitar company said that there are computers and pallets of fretboard wood are still being held as evidence in the last Fed 2009 raid on their factories, and they haven’t been charged with anything.
Tim J,
You really are a pathetic case. Exactly where in these links you provide, even the more right-wing extreme ones, does it say that the IRS is going to “seize real property and arrest small business owners and individuals?” The IRS has always had the power to impose fines on tax evaders; that is nothing new. Those fines are civil penalties and are subject to adjudication in Tax Court with appellate rights in other Federal courts. The only variation is when the tax evasion includes felony offenses such as wire fraud or mail fraud, in which cases the IRS must refer the case to the DOJ and US Attorney for investigation and prosecution.
And the shotgun RFP? I think that you have been watching too many reruns of the Untouchables while reading blog accounts of secret “black helicopters.”
Grow up.
Roc, you best take your ADD medication as when was there anything mentioned about “taxes”? Your points about “taxes” are one of the “whoops we forgot to call Obamacare a tax in the legislation but it really is” talking points the administration is trying to use in their legal theory on the individual mandate. In other words, Obamacare hasn’t just been tacked onto the end of the tax code. As to the shotgun RFPs, what part of “Adjustable Stock, and Speedfeed ribbed black forend, are designated as the only shotguns authorized for IRS duty based on compatibility with IRS existing shotgun inventory, certified armorer and combat training and protocol, maintenance, and parts” don’t you get? Your beginning to sound more and more like Mike Barrett as you both move together, hand in hand, believing the promises and assurances made by politicians and a Government that is out of control.
The Virginia challenge is primarily a tax-subsidized campaign foray by the AG. It would not have been that difficult to construct a suit in which clear standing was articulated, either by Virginia individuals, or by government entities. I suspect that the reason that was not done was haste by the AG to elbow himself into the limelight and, potentially to the front of the queue for the Supreme Court’s ultimate review of the Health Care legislation. The state statute Norm refers to was a gambit that the GA passed to give cover to the lawsuit. The panel decision saw it as such and shredded that argument pretty quickly.
The Radtke/Marshall constitutional hallucinations are decidedly Calhounist in their perception that the States, as States, are arbiters of constitutionality in the Courts. There are indeed circumstances where states have actionable interests, but this case, as pled, did not establish that.
Courts can be fairly inventive in avoiding standing pitfalls when they want to be and it may well be that this particular panel lunged at the pleading weaknesses as a way to avoid the tough underlying constitutional issues. The Fourth Circuit still has some excellent conservative jurists and I would love to know whether the Court as a whole would sign on to the panel’s reasoning (although it’s a well-honed conservative juridical instinct to be wary of sloppily-pled standing representations) Asking for en banc review will smoke that out. However, I doubt Mr. Cuccinelli wants to take the time to do that and would rather get to the Supremes as fast as he can. Your tax dollars at work.
First of all Scout, or whatever your real name is, MONEY WELL SPENT!
Getting this situation addressed sooner rather than later is the best interest for Virginia and all of America. That simple.
Secondly, you speak of easily crafting “standing”. Give us your example.
Thirdly, Virginia/Cuccinelli/Radtke/Marshall are not contending here that Virginia is the “arbiter” as you put it. They have standing and the suit is “ripe” because Virginia’s law will be overturned by Obamacare. That overturning can be referenced as damage done to state powers. It is then up to the court to decide how much if any damage was done. Virginia argues that they are injured/have standing and that the instrument of harm is unconstitutional. An unconstitutional mechanism that subverts checks and balances as relating to the 3 branches of government and the state/federal balances.
But fine, give us your winning strategy!!!
Good see JR and BD say something positive about Jamie Radtke. She really would do Virginia proud in the Senate.
So it is up to the courts to decide “if” Obamacare can trump state law in THIS case. Virginia certainly has standing there. The courts decide if Obamacare is proper in that regard and constitutional.
As for the individual mandate and its effect on the citizen, the case isn’t ripe.
When the Texas sodomy law was overturned by the supreme court, did Texas not have standing? Do states only have standing with regard to their laws only when convenient for you and Democrats? Fine, let’s pass a federal level law overuling California’s stringent evironmental regulations when the GOP regains control. Maybe they’ll do a better job of really outlawing gay marriage despite state laws allowing it. Then I guess some Democrats will be loving states having standing. Texas lost, rightly so in my opinion( I’m a Libertarian), but you’re darn right they had standing.
Sorry if this ends up a double post. I wanted to clarify that in Lawrence v. Texas that resulted in the overturn, is just a blatent example of how (right or wrong on the issue) states have standing when their laws are adversely affected.
Britt Howard,
You are about bass ackwards in the arguments many of us have.
The Texas ruling was not about sodomy, but about the right to privacy. The current matter is about the power of the federal government to force a citizen to purchase a service from a private profit motivated entity.
Evidently you have not idea of the arguments being made and the matters that are at stake.
Let us take this a step further.
Often you will hear claims that “the government” is allowed to make us buy insurance to drive a car. First off, this is a state requirement, not a federal requirement. Depending on the Constitution each state was chartered under, this probably is allowed under the federal Constitution. But even in this example, please note that is what is required is only liability insurance. You are required to have insurance to cover the other guy if you run into him. You are not required to have insurance to cover your own losses if you run off the road and into the ditch.
Little David, I think you missed my point. Probably my failure to articulate, so I will try again.
My reference to the Texas law had nothing to do with the merits of the case or what it was about. The point is Texas has a statute that was being overturned and HAD LEGAL STANDING! Many questioned the constitutionality of the law, but NOBODY tried to say Texas had no standing with their own law. For what it’s worth, I agree it privacy was the focus. In Virginia after all, it is still a felony inpublic. That has NOTHING to do with my point on legal standing.
So, no, you’re wrong about that being “clearly” the case. It is analogous in that we’re talking about legal standing. Virginia has standing in this case because Virginia law will be overridden by Federal law. Just as Texas had standing because their law was over ruled in court. It doesn’t mean Virginia or Texas is wrong or right. It just means they have legal standing to claim injury. A claim to be ruled on later.
You can sue for something that hasn’t happend yet. (The case isn’t “ripe”). You ca:jt sue if you weren’t damaged. True enough the Marshall statute was designed to protect Virginians proactively and served to produce injury or standing. They can claim it was a stunt just to create injury all they want, that DOES NOT change the fact that Virginia passed a law and Congress passed a law contrary to it doing damage to the interest of Virginia and its powers as a state.
You car insurance mandate point misses several factors:
1) It is contrary to Virginia law and that must be settled
2) As you said, car insurance is mandated and set at state level
3) you insure against others not yourself by mandate as you said. Why? On the road you are an immediate threat to kill or damage property. Youself and your property is your business. Your heart attack and lack of payments kills only you. Health insurance won’t even cover many health issues like autism. Then you have the death panels even denying treatment! No analogy, sorry.
4)driving on public roads is a priviledge and not a right. Take the bus.
5) obamacare forces you to buy health insurance. Car insurance is avoidable! Take a cab!
Should be you “can’t” sue for something that hasn’t happend. Sorry.
Mr. Cuccinelli was seeking to revive Thomas Jefferson’s and John C. Calhoun’s failed doctrine of state nullification of federal law and the 4th Circuit would not allow him to do so.
Mr. Cuccinelli’s argument was that state law trumps federal law. The court rejected that notion.
The sad part is reading claims by folks who are still supporting the idea that state’s should be allowed to wipe out federal laws they do not wish to enforce.
Andrew Jackson shot down nullification in the 1830s. Abraham Lincoln did it again in 1860s.
And the Supreme Court did it again in the 20th century in decisions that made the Bill of Rights and other amendments applicable to the states. The civil rights laws of the 1960s are based on the notion that federal authority is supreme over the states, and at times local governments. Businesses cannot deny service to patrons because of race or other considerations that violate public policy, even if allowed to do so by their state or local government.
The ruling strictly hewed to the Constitution.
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