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Category: Articles

Motion to Dismiss Virginia Suit Against Health Insurance Mandate to Be Heard July 1
By Institute for Health Freedom
June 16, 2010


U.S. District Court Judge Henry E. Hudson will hear arguments July 1 on the federal government's motion to dismiss Virginia’s lawsuit challenging the constitutionality of Obamacare’s health insurance mandate. The Richmond Times-Dispatch reports:

  • "[State attorney general Kenneth] Cuccinelli ... argues that Congress overstepped its authority under the Commerce Clause to mandate that every American obtain health insurance or face a fine. The insurance mandate portion of the act takes effect in 2014."
  • "In its response ... federal lawyers argued that Congress is allowed to impose the mandate under its authority to regulate interstate commerce. It also said Virginia cannot represent individuals who have yet to be affected by the mandate."
  • "Regardless of how Hudson rules on the motion, however, the losing side is expected to appeal the decision to the U.S. Court of Appeals. Both sides expect the case will end up before the U.S. Supreme Court."

According to Ken Klukowski, a senior legal analyst with the American Civil Rights Union and frequent Fox News contributor:

  • "[T]he Virginia suit is raising the 'severability' issue. It's not an exaggeration to say that the future of American health care may well turn on severability. Almost all legislation has a severability clause. That's routine language - almost boilerplate - that says if any one part of this law is found unconstitutional, or otherwise invalid or unenforceable, then the remainder of the law will continue in full force and effect."

    "Obamacare has no severability clause. That means is that if any one part of Obamacare is found unconstitutional, then the entire law might be thrown out in court by a single decision. It doesn't mean that it would definitely happen, but it might. This lack of severability could be the silver bullet that destroys the entire Obamacare system. Otherwise, striking down any one part of it could just open the door to a dozen more lawsuits, some of which the Obama administration would win. And various parts of the law may get entrenched support over time, making them hard to modify or replace." "We're in something of uncharted waters with the Virginia case ... Unlike the big multistate case, where several co-plaintiffs are private individuals lacking insurance who would be subject to the mandate, the Virginia suit only names one plaintiff, Virginia, and one defendant, HHS Secretary Kathleen Sebelius." "So the heart of the administration's argument for dismissal is that Virginia lacks standing to bring the suit. Article III of the Constitution requires that a plaintiff have standing to sue in federal court. To have standing, a plaintiff must allege a concrete, personal injury that is different from the public at large, that a court can redress if it grants the relief that the plaintiff is seeking. Here, Virginia's legislature passed a law empowering and charging the attorney general to bring suit on behalf of all the citizens of Virginia that would be under the hammer of the individual mandate. Cuccinelli filed suit in accordance with that law." "There is no Supreme Court precedent that clearly states whether such facts can create standing. The motion to dismiss makes the argument against it, and now Cuccinelli will argue why Virginia does have standing."

An update on the Virginia lawsuit (May 24 press release) is posted at the Virginia AG’s website: http://www.oag.state.va.us/PRESS_RELEASES/Cuccinelli/52410_HealthCare_Response.html

Sources:

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