AN OBAMACARE UPDATE from Attorney General Ken Cuccinelli on Virginia's lawsuit to determine the constitutionality of the federal healthcare law.

Dear Fellow Virginians and fans of first principles,

The healthcare hearing on October 18th ... was to argue the constitutionality of the individual mandate. It's called a 'summary judgment' hearing, because the judge is going to rule without a trial. The reason for this is that the facts of the case are not in dispute, the only thing to determine is how the law applies to those facts - in this case, the 'law' is the constitution itself.

The two basic facts of the case are the existence of the federal healthcare law and the existence of Virginia's Healthcare Freedom Act (VHFA). These two laws are in direct conflict with one another, because the VHFA says that no Virginian can be ordered to purchase health insurance against his will. This conflicts with the federal healthcare law's mandate that all qualifying Americans must purchase government-approved health insurance.

Normally, under Article VI of the U.S. Constitution - a.k.a. the supremacy clause - a federal law in conflict with a state law would trump that state law. However, the exception to the supremacy clause is when the federal law is unconstitutional, and in this case Virginia is arguing that the federal healthcare law is in fact unconstitutional. So, if we win, at least the individual mandate and all of the insurance components in the federal healthcare law ("the federal law") will fall and the VHFA will stand.

Prior to October 18th, both sides filed approximately 100 pages of briefing. Additionally, there were a large number of amicus briefs filed by third parties (an amicus is a "friend of the court"). The amicus briefs heavily favored our side and were very high quality contributions to the legal discussion. Interestingly, despite the pounding we've taken from the academic world, we had 15 law professors supporting our position to only 3 for the federal government.

The hearing lasted a bit over two-and-a-half hours and featured what lawyers would call a "hot bench." That means the judge was engaged and asking lots of aggressive questions. He was clearly very well prepared and he challenged both sides on their legal theories.

I will point out a few things that happened during the hearing that are funny (to me anyway...) or that show how this administration approaches this case.

Introductions and Federalism

First, as soon as the lawyer for the federal government got up, he introduced himself: "Good morning your honor. Ian Gershengorn for the government, err...., I mean the federal government..."

What's peculiar about this? I suspect that Mr. Gershengorn has never in his life faced off against a government before; however, that's exactly what was happening in that courtroom. The federal government was defending itself against the legal assault of the government of the Commonwealth of Virginia.

Remember that one of the elements of the design of the founding fathers was what we call "federalism." Most people are familiar with the idea of 'checks and balances' in our government, and we usually think of the division of power between the legislative, executive and judicial branches. But there is another division of power within our constitutional system, and that is the division between the federal government and the state governments.

Virginia's own James Madison wrote extensively in the Federalist Papers about how the states would have extensive authority preserved from the federal government to be exercised by the states themselves or reserved to their citizens. When contests about those constitutional boundaries arise, they are to be fought out in our courts, and that is exactly what we are doing in Virginia.

We are fulfilling the founders' expectation of states, that is, because the federal government is overstepping its constitutional authority, the founders expected the states to push the federal government back inside its proper constitutional boundaries, and we are doing that in this case.

I have no doubt which side of this case every single founding father would be on - Virginia's!

Tough Questioning

Very early in the federal government's presentation, the judge asked "if this is constitutional, what limits are there on federal power?" The feds' lawyer never really answered this question. How could he? The judge went on to ask, "if this is constitutional, what's to keep the federal government from telling me what car to buy, to eat asparagus, or to join a gym?" The feds' lawyer's answer was that 'healthcare is different' from everything else.

His reasoning for this was their presumption that everyone will use healthcare at some point. However, this doesn't seem like much of a limiting constitutional principle... What about food? Transportation? Housing? Clothing?

The Statute is Unprecedented... to Everyone but the Federal Government

This administration appears to be the only entity across the country arguing that there's nothing out of the ordinary about the federal law. Even judges ruling favorably to the feds are saying that the federal law is unprecedented, yet the feds in all their briefs keep insisting 'nope, nope, nothing unusual here... nothing to see, move along...' But no one is buying that - no one.

Activity or Inactivity?

One way of thinking about what the feds are trying to do is that in an effort to regulate interstate commerce, they are compelling us all into commerce, i.e., ordering us to buy their mandated health insurance. Virginia's position is that those who decide not to buy health insurance aren't taking any action at all that is related to commerce. All the case law related to the commerce clause addresses people voluntarily engaging in economic activity.

Well, if you're not doing anything (i.e., not buying insurance), there's no activity to regulate. Put differently, you are inactive.

The feds' addressed this argument saying "the appearance of inactivity is a mere illusion."

No, seriously, that's what he said!

So, let me get this straight - if you do something, your activity can be regulated by the federal government, and if you do nothing, your so-called inactivity can be regulated by the federal government... so, what can NOT be regulated by the federal government? Nothing, at least according to the logic of the federal government.

The feds are trying to convert the decision to do nothing into an 'action' or 'activity' that fits within already-existing case law on the commerce clause. This is just one of the leaps of language and logic necessary for the feds' arguments to prevail.

More Problems With the Dictionary

Another good one was when discussing the "penalty" in section 1501(b). The "penalty" is called a "penalty" in the law, i.e., that's what Congress calls it. The "penalty" is a monetary fine you must pay if you fail to buy the mandated, government-approved health insurance. However, according to the federal government "there is nothing punitive about section 1501(b)."

Really? Yes, you read that right. According to your federal government there is nothing punitive about having to pay a penalty.

Again, if we could just get rid of dictionaries and logic, the feds would be able to make all of its arguments without impediments. Oh well, pesky dictionaries...

Constitutional Presumptuousness

Another of my 'favorite' arguments the feds made during the hearing was that "there's no constitutional right to be left alone." While at some level this is technically true, it suggests a very disturbing view of federal government power.

Remember, the Constitution was supposed to establish a limited federal government of only enumerated powers. Put differently, the states and citizens can do whatever they want under the Constitution (I exaggerate of course), but the federal government is supposed to have only limited powers. But now we have a federal government that says that you have no right to be left alone, which suggests that they think they can reach anything you might do (or not do). That doesn't sound very limited to me!

It turns the initial presumptions of the founding fathers upside down. Instead of a restrained government of limited powers, it suggests an all-reaching government with any powers it chooses to exercise. The statement by the lawyer for the feds is a real peek into how this administration views federal power in general and suggests that there is very little (if anything) that they don't think they can reach using that federal power.

Such a view would be antithetical to the founding fathers. It represents the realization of many of the worst fears of James Madison, Patrick Henry and Thomas Jefferson - to name but a few.

What's Next?

The judge said that he would rule by the end of the year, so look for that some time in December.

It is not unreasonable to think that if we lose this case, it will be the end of federalism as we have known it for over 222 years. Thus, the important thing in the ruling is not so much the remedy, but first and foremost the question of constitutionality. The remedy could change when we get to the Supreme Court, but the remedy is secondary to protecting the outer boundaries of the constitution.

I believe that some of the federal government's arguments in court clearly reflect an attitude that the constitution is almost unlimited in its 'flexibility,' which, if true, would be a radical departure from what the founding fathers thought they had established.

Cuccinelli's web site is here.