Virginia attorney general ready to challenge health-care law

The next battlefield in the fight over health care legislation may be inside a courtroom instead of the halls of government.

While national Democrats savored victory, several Republican attorneys general, including Virginia's Ken Cuccinelli, plotted ways to do what the GOP minority in Congress couldn't: block newly passed health care legislation from taking effect.

After hinting for days that a lawsuit was pending, Cuccinelli confirmed Monday he'll sue the federal government as soon as President Barack Obama signs the reconciliation bill today that was approved Sunday by the Democrat-controlled U.S. House of Representatives.

The U.S. Senate previously passed a measure intended to overhaul the nation's health care system. It is expected to cost about $940 billion over 10 years and extend coverage to tens of millions of uninsured Americans.

Health and Human Services Secretary Kathleen Sebelius called it "probably the most important piece of middle-class legislation" since Medicaid was created more than 40 years ago.

"I think that having affordable insurance coverage for all Americans, which is one of the goals that the president had from the outset, and working with states as true partners in this effort is kind of a win-win situation," she said in a conference call Monday.

But Virginia's top prosecutor argues that a provision of the health care bill mandating that uninsured citizens purchase coverage or face potential penalties is an "unconstitutional overreach" by federal authorities.

"There has never been a point in our history where the federal government has been given the authority to require citizens to buy goods or services," Cuccinelli said in a statement Monday.

Florida Attorney General Bill McCollum and nine other Republican attorneys general also intend to file suit to overturn legislation they contend "infringes on each state's sovereignty," McCollum said in a statement.

Getting a court to grant standing to Cuccinelli or the other attorneys general, let alone a judgment to undo federal law, could be an "uphill battle," one legal scholar said Monday.

Based on the statements made by the various attorneys general, their legal strategy appears to hinge on questions about limits on congressional authority to regulate what it deems interstate commerce.

Larry Palmer, a professor of law at the College of William and Mary and a health administration professor at Virginia Commonwealth University, likened challenging the non compliance penalty to someone suing the government for not receiving a tax credit for which they didn't qualify.

"It's hard to imagine the court attacking a tax law, which is what you would be attacking," he said.

Other legal hurdles might be the formidable federal foes Cuccinelli could face and the perception that the lawsuit is "primarily a political matter," Palmer added.

"You'll have the full Justice Department down here opposing the attorney general," he said. "The guns are loaded on the other side."

Cuccinelli believes Virginia is uniquely situated because it was the first state to adopt a law exempting residents from any individual insurance coverage requirements made by the federal government. That law, the attorney general argues, gives him strong legal standing to file suit.

Since Virginia acted, Idaho has passed a similar law and Utah soon will do likewise, according to the National Conference of State Legislatures.

One sponsor of the Virginia law was Suffolk Republican Sen. Frederick Quayle, who said he believes federal health care legislation violates the commerce clause of the U.S. Constitution, which grants Congress the power to regulate trade.

A vocal opponent of the legislation when it was passed, Roanoke Democratic Sen. John Edwards said he views the bill as "useless" because federal law trumps it and the pending litigation as a "frivo lous" exercise meant to send a message rather than achieve a goal.

University of Richmond law Professor Carl Tobias said Virginia's new law "fortifies" Cuccinelli's argument that he has the responsibility to defend the state code, but he noted that federal courts historically have broadly interpreted the commerce clause.

Julian Walker, (804) 697-1564, julian.walker@pilotonline.com