Virginia, feds square off in health care reform lawsuit

RICHMOND

Federal and state government attorneys clashed Thursday over the merits of Virginia's lawsuit against the Obama administration's landmark health-care overhaul bill - the same day a new state law exempting Virginians from a key provision of the legislation took effect.

Arguments presented in U.S. District Court during a two-hour hearing centered on the federal motion to dismiss Virginia Attorney General Ken Cuccinelli's legal challenge.

A key issue is whether Virginia has standing to sue.

As attorney general, Cuccinelli believes he does because his obligation is to defend Virginia's law and its citizens.

But that law essentially was drafted as a pre-emptive strike to passage of the federal statute, Justice Department lawyer Ian Gershengorn said during the hearing, characterizing it as a measure adopted solely to give the state a basis for suing.

"There is no concrete financial injury to Virginia because Virginia is not subject to the minimum coverage provision," Gershengorn told the court, noting that an uninsured person assessed a penalty after the mandate takes effect would have a stronger claim.

A primary building block of Cuccinelli's suit is the contention that the federal plan conflicts with the state statute excusing Virginians from a mandate requiring those without health insurance to purchase it or face a tax penalty.

Cuccinelli - he was present in court but had Solicitor General Duncan Getchell Jr. handle the oral arguments - considers that a glaring example of Congress exceeding its constitutional authority to regulate interstate commerce.

"If the government prevails... Congress can force Americans to buy private health insurance in the name of regulating commerce," the attorney general said at an afternoon news conference following the hearing. "Then Congress will have been granted a virtually unlimited power to order you to buy anything."

"If that happens," he added, "there's nothing to stop Congress from forcing citizens to buy Chevrolets or any other private products."

Automobile analogies abounded Thursday; Gershengorn used one to draw a distinction about the mandated-coverage provision in the law.

The requirement isn't the same thing as "saying you have to purchase a GM car," he told Hudson. "It's saying you can't buy a GM car and not pay for it."

At least 15 other suits that aim to undo the health care bill have been filed, according to a Justice Department spokeswoman.

Although Florida and several other states have joined forces on one challenge, Cuccinelli is going it alone based on the logic that Virginia is unique because of the opt-out law it passed. Virginia's suit appears to be one of the fastest-moving cases.

Gershengorn said that because medical expenses associated with treatment of the uninsured total $43 billion annually - a burden shared by hospitals, health care professionals and paying customers in the insurance marketplace - Congress concluded that the overhaul bill was a way to contain costs and extend coverage to millions of uninsured Americans.

The individual mandate is justified, Gershengorn said, because every American will need medical care at some point in their lives, and therefore the costs should be shared by all.

Opponents see the federal plan as an unnecessary expense masquerading as reform that will only add to the skyrocketing national deficit.

For the lawsuit to proceed, Judge Henry E. Hudson must rule that Cuccinelli has legal standing to bring his case.

Hudson told attorneys to expect a decision within 30 days. If standing is granted, the next hearing in the case would occur Oct. 18.

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