Cuccinelli Says Appellate Judges Seemed to Struggle with 'Unprecedented' Federal Power Grab

Elisabeth Meinecke
Posted: May 10, 2011 2:20 PM
Virginia Attorney General Ken Cuccinelli anticipates a ruling by the 4th Circuit Court panel on Virginia's challenge to the ObamaCare law this summer. But Cuccinelli is already looking ahead to a Supreme Court challenge, saying that Virginia took "Step 2" in a three-step process Tuesday, when the appellate 4th Circuit panel heard the arguments in the case.

He said one of the judges on the three-judge panel, Judge Diana Gribbon Motz, implied that as well during the hearing, suggesting the questions asked then would be questions answered again in another court at another time.

At a press conference Tuesday, Cuccinelli described the judges as being "aggressive" in questioning with both sides.  Virginia is arguing that the ObamaCare provision that everyone must buy health insurance violates the Constitution, and that the Commerce Clause cannot be used to mandate that. The case also takes issue with the provision of the law penalizing those that do not buy health insurance in violation of the mandate.

"This case is about liberty, not health care," Cuccinelli said.

Cuccinelli also made the distinction that the plaintiff in this lawsuit is the state, not individuals. Virginia passed the Health Care Freedon Act, which protects state residents from an individual health insurance mandate. A federal law would, of course, trump this state law, unless it's deemed unconstitutional.

According to Cuccinelli, the federal government tried to make the case that Virginia passed the Health Care Freedom Act to set up standing for the case today. Cuccinelli says, however, the law applies much more broadly -- it gives rights to individual Virginians to avoid compulsory health insurance from employers, too. 

Cuccinelli said the government argument in the case promotes unlimited authority over the economy and would dictate Americans' decisions, not just their actions. He also said the judges seemed to struggle with the "unprecedented" nature of the exercise of authority the federal government seemed to take in this legislation