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.

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."

For a Virginian like me, the symbolism was eerie. In the 1950s, Virginia asserted, by statute, that it would apply its "sovereignty" to block Brown v. Board of Education. Getchell's argument rang changes on nullification and interposition, echoing Calhoun, James J. Kilpatrick, and Harry Byrd.

But in 2011, Getchell--by luck of the draw--was trying to sell state "sovereignty" to a panel that included two African-American judges. One of them, Judge Andre Davis, actually laughed in his face. Getchell's increasingly pettish responses got him no closer to the chance to attack the health-care law. In the waning moment of his argument, he plaintively said, "I would like, in the couple of minutes I have left, to address some aspects of the merits."

Most of the merits argument, however, was carried by Mathew Staver, dean of the Liberty University School of Law. Staver, who argued first, spent his time before the court making one point: The health-care law seeks "to regulate for the first time in history non-economic inactivity" and thus exceeds Congress's Commerce Power.

Judge Motz asked a treetop-level question: "What is your definition of activity?"

"You have to be doing some kind of production, trade, exchange," Staver replied. "What we have here is individuals who want to remain out of the stream of commerce."

"That's not what your complaint says," Judge Motz says, noting that one of the Liberty plaintiffs expresses her desire to consume health-care services but wishes not to buy insurance.

Staver adopted an approach I caution my students against--he repeatedly changed the question to serve up the chance to answer it his way. "Well, managing your own physical being by eating properly is not an activity under the Commerce Clause," Staver told Judge Motz. "Managing your own activity by simply having natural remedies is not an activity. ... They want to be left alone."

The questioning went on and on, with each judge asking whether the facts of earlier cases or of hypothetical cases involved "activity" or "inactivity." Staver's point, over and over, was that while an earlier case involved activity, not buying health insurance was "inactivity." Judge Motz, presiding, gave Staver extra time (a rare event before an appellate court) to answer these questions, until the entire courtroom seemed to be trapped in a hellish legal version of the old Southern doggerel, "Pudding Tame, that's my name, ask me again and I'll tell you the same."

The "activity/inactivity" distinction is a classic 50,000-foot argument. The more facts are laid on the table, the less it appears that there is in fact a principled definition that between "activity" (growing wheat for home consumption, or lending money at usurious rates, both of which the Supreme Court has held to fall under the Commerce Power) and "inactivity" (refusing to pay in advance for health care you are virtually certain to consume). Katyal, arguing for the government, proposed to the court that "inactivity" is "just the word they use to describe the facts in a particular case."

This remark faintly echoes Ludwig Wittgenstein's famous dictum, "Whereof one cannot speak, thereof one must remain silent." After arguments around the county, and whole forests of op-ed rants about activity/inactivity, we are no closer to an answer.

In fact, we are no closer to the question. The reasonable conclusion is that it's meaningless. Perhaps the real question should be--is there a rational basis to conclude that the decision whether or not to buy health insurance substantially affects interstate commerce?

That question, to my mind, answers itself, which is why the act's opponents do not wish to answer it.

Eventually the Supreme Court will weigh in. I hope it will do so by addressing my question; but it may instead tell us whether refusing to pay for health-care insurance is "activity" or "inactivity."

If so, we will know they are right because and only because they have put that name on it. As Justice Robert Jackson once wrote of the Court, "We are not final because we are infallible, we are infallible because we are final."

Even nonsensical names stick when the Court bestows them. Such is the majesty of law.

* Conspiracy theorists, bereft of birth-certificate questions, will probably make dark suggestions about the panel's makeup. Having clerked on the Fourth Circuit, I can attest that panel assignments are random. Sometimes one side or another gets a break; it's the luck of the draw. Note that the Court's Chief Judge, William B. Traxler, is a protégé of the late senator Strom Thurmond, appointed as a District Judge by George H.W. Bush and as a Circuit Judge by Bill Clinton--hardly anybody's stooge.