Will Ken Cuccinelli's Health-Care Challenge Be Sidelined?

After Tuesday's proceedings in federal appeals court, the case of the Virginia attorney general may be poised to fall


AP/Steve Helber

RICHMOND, Va. -- Ken Cuccinelli brought his crusade against the federal health-care statute to Jefferson Davis's old office building Tuesday. The venerable Lewis F. Powell Jr. Courthouse in Richmond, Va., was not only the Confederate president's headquarters but also the place where a federal grand jury later indicted Davis for treason. That history made it a fitting venue for arguments that echo the state's rights and nullification ideology that spawned the Confederacy.

The argument in front of the U.S. Court of Appeals for the Fourth Circuit is but one more skirmish in a long civil war that will almost certainly be decided by the U.S. Supreme Court early next year. Nonetheless, the combination of a panel of three Democratic appointees* and an extremely poor argument by the Commonwealth now raise the specter that when the foes of the Affordable Care Act gather for the decisive battle, Ken Cuccinelli, the littlest rebel, may be out of action.

The judges--Judge Diana Gribbon Motz of Maryland, Judge Andre Davis of Maryland, and Judge James A. Winn--belabored Virginia's solicitor general, Duncan Getchell, with a question that has long tormented me: What is the Commonwealth of Virginia even doing in this courtroom? His answers seemed not to satisfy them.

Challenges to the act have two aspects. One is case as seen from 50,000 feet. Unfortunately for Virginia, yesterday's argument was fought at treetop level.

In the federal system, a plaintiff has to prove that he or she has standing to sue--that is, that the action in question has or will in some way injured that plaintiff. The arguments yesterday concerned two separate cases proceeding in tandem. One, Liberty University v. Geithner, is a challenge brought by the conservative Baptist school founded by the late Rev. Jerry Falwell, alleging that it (as an employer) and several individual plaintiffs are injured by the impending "individual mandate" (which the government's attorney, acting solicitor general Neal K. Katyal, called the "individual responsibility" provision). That's a pretty ordinary lawsuit, whatever you think of the merits. The challenged provision, set to go into effect in 2014, provides that every person filing an income-tax return must either show that he or she is covered by a health-insurance program or pay an additional sum in income tax. Liberty University's plaintiffs are suing to block a federal government action that will act directly on them.

But Cuccinelli's suit, Virginia v. Sebelius, has a slightly different genesis. The Virginia Health Care Freedom Act, passed a few days after the federal statute, proclaims that "[n]o resident of this Commonwealth ... shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services." Virginia argued to the District Court that this law gave it "standing to sue" even though the federal act's individual mandate provision does not require the state to do anything. Judge Henry Hudson bought this argument, writing that the Virginia statute (despite what he called its "transparent legislative intent" of blocking the federal law), by its "mere existence ... is sufficient to trigger the duty of the Attorney General to defend the law."

This reasoning ran into heavy weather at the Fourth Circuit. Challenges to the act have two aspects. One is case as seen from 50,000 feet. This is the political case, involving invocations of the Battles of Lexington and Concord, citations to Madison and Jefferson, and dire warnings about the Federal Broccoli Inspectors. That battle is being fought in the court of public opinion, and will become relevant legally when the issue comes before the U.S. Supreme Court.

Unfortunately for Virginia, yesterday's argument was fought at treetop level. Appeals-court judges are required to follow Supreme Court precedent, and they spend a good deal of time studying it. What was on their minds was this question, as expressed by Judge Motz: "If the Virginia legislature should pass a law which said that no Virginia citizen shall be required to pay social security, would that give you the ability to challenge it?"

Duncan Getchell, Virginia's solicitor general, is what we might call a 50,000-feet guy, well armed with quotes from the Founders. When the judges asked treetop-level questions, Getchell, astonishingly, actually got huffy. Could states by statute create standing to challenge Social Security, or the National Labor Relations Act? Yes, Getchell sniffed. States have standing to challenge any federal law that contradicts their laws, even though they might lose. Supreme Court precedent suggesting otherwise was probably not worth following. Why? "A co-sovereign is not to be deprecated."

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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