ATTORNEY GENERAL KEN CUCCINELLI on Virginia’s ObamaCare lawsuit:

My Fellow Virginians and Friends,

Two weeks ago, we had our oral argument in Virginia's case against the federal health care legislation - specifically against the individual mandate. It was an interesting day, and I wanted to offer you a few reflections on the hearing.

Virginia is in the 4th Circuit of federal appellate courts. The states of Virginia, Maryland, West Virginia, and North and South Carolina are the states in the 4th Circuit. Last Tuesday, we argued before a 3 judge panel of the 4th Circuit. There are 14 judges on the entire bench in the 4th Circuit. Our 3 judge panel was randomly
selected from the judges on the 4th Circuit. As you may have read, our panel was composed of: Judge Motz, appointed in 1994 by President Clinton; Judge Davis, appointed in 2009 by President Obama; and Judge Wynn, appointed in 2010 by President Obama.

Also arguing in front of the same panel was Liberty University. We are in the interesting position in Virginia of having two different cases, with different parties, not one. There are two federal districts in Virginia - the Eastern District and the Western District, and there was a separate case in each district.

In the district court, Virginia's case was in the Eastern District, where we won. Liberty's case was brought in the Western District, where they lost. So, in the 4th Circuit, the U.S. had appealed our case and Liberty appealed its case.

In the 4th Circuit, one 3 judge panel cannot overrule another 3 judge panel. Thus, to maintain consistency in rulings, both cases were put in front of the same 3 judge panel.

The 4th Circuit is known for asking a lot of questions and probing the responses thoroughly. Our hearing was no exception. The two hearings were scheduled for about an hour and a half total, but they went well over two hours - approaching two and a half hours total.

The pressure that builds up on the lawyers in such an extended set of exchanges does serve a useful purpose. The lawyer for the federal government, the Acting Solicitor General of the U.S., was pushed into a couple of very candid statements that I found fascinating - especially at the very end of the hearing.

But first, it is helpful to have a brief reminder of the basics of the case - though I know most of you have been following this case closely.

There are four elements to this case: 1) standing, 2) the individual mandate under the commerce clause, 3) the penalty under the taxing power, and 4) any remedy, particularly in light of the absence of a severance clause in the bill. The fourth item was not addressed in the hearing, so I will just address the first three.

The Hearing.

The U.S. pushed hard to knock Virginia out on standing, i.e., the idea that Virginia doesn't even have the right to bring its case. The federal government seem down right offended with the concept that Virginia could have a law and when the federal government later enacts a conflicting law, that the clash between the two would be a sufficient basis for Virginia to bring a lawsuit.

One of the judges asked us "is all a state has to do to have standing to sue the federal government is pass a law?" Our answer? "Yes."

It's worth remembering that the states' representatives wrote the constitution that established our federal government, and it was adopted by the people's representatives in constitutional conventions across America. As one of my children might say, "we were here first."

It may appear to some to be inconvenient for states to have the authority of a co-sovereign with the federal government, but it seems a small price to pay for the federal government in exchange for its very existence. It is also critical to federalism that states be able to challenge federal overreaches of power that would trample state laws. It might be nice if we didn't have so many "opportunities" to address such overreaches of federal power, but they've been keeping us pretty busy in that regard!

During the hearing, there was a discussion of a 'parade of horribles.' One of the examples was, 'well, if Virginia can sue over this, then they could pass a law saying its citizens couldn't be sent to Afghanistan to fight the war.' Well, Virginia could theoretically pass such a law and even bring a lawsuit, which the federal government would quickly win because it has the power "to raise and support Armies" under Art. I, §8 of the constitution.

As we said in the courtroom, 'yes, Virginia would have standing - standing to lose the case.' Again, there may be an element of inconvenience to the federal government, but that hardly seems a significant concern in order to provide a co-sovereign the dignity of a mere attempt to protect its own code of laws.

The concept of state sovereign standing has been recognized by the U.S. Supreme Court to allow a state to defend its code of laws. Every other federal circuit court of appeals to directly address the issue has found that a state has standing to defend its code of laws from federal challenge. I am hopeful that the 4th Circuit will come to the same conclusion in our case.

The Merits.

The issue that the Court spent the most time on was, not surprisingly, the individual mandate. As I mentioned earlier, I found two of the federal government's statements during the case to be particularly interesting.

The first statement was to describe what is supposedly being regulated via the individual mandate. The feds said fairly early in the oral argument that the individual mandate is part of an attempt to "regulate the decision to self-insure." This is their way of trying to cast an individual citizen's decision in commercial terms (remember, we're mainly debating the reach of the commerce clause).

It's a very clever way of saying 'we are regulating your decision to do nothing.'

The commerce clause cases during the last 100 years have addressed regulating some sort of activity; and they have used the word "activity." The feds are trying to overcome the fact that there is no activity being regulated, so they have to come up with creative excuses for activity and say that that's what the legislation regulates. Thus, in the hearing on May 10th, they argued that the "decision to self-insure" was the activity being regulated.

A problem with this line of argument is that it logically leads to a "decision" being
equivalent to an "activity." I.e., thinking something is the same as doing something. The district court judge in the case in D.C. ruled that the individual mandate is constitutional, and she actually acknowledged and approved of the fact that the individual mandate is regulating "mental activity." George Orwell would be proud, but let's face it, that judge accurately describes what the federal government is trying to do!

If you take a decision alone, without more, there's no activity there - just thought - then the government is equating inactivity to activity. That is their argument.

The second statement came nearly at the end of over two hours of discussion, questions and answers. One of the judges indicated that she was not comfortable with the federal government's attempt to address our activity/inactivity distinction, and in response, the lawyer for the federal government said that even if the court found that there was no activity of any kind, that the law was constitutional anyway. This was an astonishing statement.

In other words, instead of trying to convince the court that there was some kind of activity going on that the federal government was regulating with the individual mandate, they finally broke down and said that - in their view - they didn't even need any activity anyway, they could just order you to go buy their government-approved product (in this case, health insurance).

This would convert Congress' authority to regulate interstate commerce into an unbounded power - just as I have been arguing all along.

Up until this point, the federal government has danced around this issue. But when pressed, they finally conceded the sweeping nature of their claim of power.

If the feds' position is upheld, it would essentially swallow up much of the rest of the constitution. If you don't even need to do anything to be subject to federal regulation under the commerce power, then the feds can reach vast areas of our society now thought immune from federal authority.

Oh, and by the way, federalism would be dead and liberty would be badly damaged...

That's why I always say that this case is about liberty, not health care.

What's Next?

It will likely take a couple of months for the 4th Circuit to issue its order in our
case. If we win, I suspect that the federal government will NOT appeal to the Supreme Court, rather, they would attempt to drag the case out by seeking what is called "en banc" review. That means a rehearing by the full 4th Circuit - all 13 active judges. Only then would whichever side loses at that hearing be able to appeal to the Supreme Court.

If we lose, we will likely appeal to the Supreme Court directly, in the hopes of resolving this case as quickly as possible.

As we wait for the outcome in our case, there are three others headed to appellate courts around the country.

On June 1st, the 6th Circuit will hear an appeal in Cincinnati of a case brought by the St. Thomas More Society and others.

On June 8th, the 11th Circuit will hear the appeal of 26 of our sister states in Atlanta. Their case is an appeal brought by the U.S. Government, as was the situation in our case.

Then, in September, the case in Washington, D.C. that I referenced earlier ("mental
activity") will also be argued.

As I get news of the other cases, I will pass it along to you. And of course, when we get our order, I'll let you know!

So it's not enough to regulate activity, it's time to regulate thought ....