The 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.
