Virginia wins round one of the health care mandate grudge match

Cuccinelli has drawn first blood in his principled mission to protect the citizens of Virginia from the tyrrany of health care. What does it mean? Can Justin even figure it out?

August 26, 2010; 12:07 PM • by Justin Morgan

In a battle of Virginia’s duly elected representatives in government, Kenneth Cuccinelli (58% of Virginia voters in November 2009, about 1.1 million) is taking the fight directly to Barack Obama (53% of Virginia voters in November 2008, a shade under 2 million) over the constitutionality of the health care mandate. This is going to be a uniquely Richmond battle. Originating in U.S. District Court for the Eastern District of Virginia in Richmond, the case would end up in the Fourth Circuit Court of Appeals if it’s, well, appealed. The Fourth Circuit is also headquartered in Richmond, meaning that the case could spend its entire pre-certiorari life within the friendly confines of the Tattooed City. For those of us who enjoy following court cases and who appreciate when Richmond and Virginia’s contributions to constitutional law do not involve droopy drawers, this is exciting. (Note: do not Google the term “droopy drawers.” It also means something unconnected to the Virginia General Assembly.)

Though other states have bound together with Florida to mount their own challenge to the federal insurance mandate, I am rooting for Virginia’s case to be the one that hits the Supreme Court and which ultimately decides the fate of the law. For one thing, it will keep Cuccinelli busy and out of trouble. Secondly, the Fourth Circuit is known to work quickly, so if we’re lucky, the case could hit the U.S. Supreme Court for the 2011-2012 season. If the NFL has a lockout that year, we will be looking for other diversions.

So far, only one procedural step has been taken in the Cuccinelli variant of anti-Obamacare legal challenge, but it’s an interesting one that gives a preview of how each side will argue its rights, and how the case could be viewed by federal judges. On August 2, Federal District Judge Henry E. Hudson ruled that the case could move forward in his court, despite a routine pre-suit challenge by the federal government on Cuccinelli’s right to sue. I am most emphatically not a lawyer, but opinions like these are written in surprisingly readable English, so I decided to wade into the dispute and see what’s already taken place. (Read along at home if you’re not planning to do any work today, and feel free to point out where I screwed up in the comments. Here’s the Judge’s decision.)

The judge didn’t rule on the “merits”: whether he thought the Commonwealth of Virginia was right, or whether he thought Kathleen Sebelius was right (Obama’s Secretary of Health and Human Services, and the person who Cuccinelli is specifically suing on behalf of Virginia in the case). But Justice Department lawyers (representing Sebelius, and from now on referred to as the DOJ) had put in a motion saying that Virginia couldn’t sue the government on this issue for any of a multitude of reasons, any one of which would have been good enough to scuttle the lawsuit before it even gets momentum. In football terms, it was a full-on blitz by the defense on the first play from scrimmage to try to sack the QB and force a fumble, but Cuccinelli savvily dumped off to the running back for an easy first down. In relationship terms, despite Sebelius playing a little hard to get, Cuccinelli managed to get her to agree to a first date, moving the relationship forward.

According to the DOJ lawyers, there were two main problems with Cuccinelli’s lawsuit. First, it was arguing that they didn’t have subject-matter jurisdiction. In other words, that a federal court doesn’t have the right to hear the type of case Cuccinelli was trying to bring. And second, that Cuccinelli didn’t state a proper claim. Is there an actual interesting question here that is worth deciding? The fact that defendants are able to motion to end a case before it even starts is, to me, pretty awesome. It’s a good way to cut to the chase and keep frivolous or flawed lawsuits out of full-blown trial. Next time you’re having an argument with your spouse or significant other, tell them they failed to state a claim upon which relief could be granted and see if that works.

Let’s take the two objections one at a time. I pulled out my notes from college on justiciability (I’m a nerd, but Constitutional Law is the only class for which I still have my notes. Hell, it may be the only class for which I actually took notes). According to the best professor at Case Western Reserve University (Prof. Laura Tartakoff), federal courts can only hear cases where the plaintiff shows standing, lack of mootness, and ripeness. The case most certainly is not moot, so the DOJ focused on the other two objections. In this case, the DOJ argued (among other things) that Virginia had no standing, because they were fighting paternistically on behalf of citizens, and so there was no injury that the state itself suffered due to the health law. But Virginia has passed its own law saying that no citizen should be forced to purchase health insurance, meaning that there was a legitimate controversy between Virginia and the federal government that needs to get sorted out. There’s also a law that says that you can’t sue the government to prevent it from taxing you, but that objection was swept aside pretty handily by Cuccinelli because the suit is really more about the conflict in federal and state laws about the mandate, not about taxation specifically, and the judge agreed. So check, Virginia has standing.

In addition, the DOJ also argued that the case wasn’t yet ripe. I have vivid memories of daydreaming in class about hardback books of court cases ripening on the vine like strawberries. But the idea with ripeness isn’t how tasty and delicious the court cases have become, so much as you don’t want people suing each other over stuff that hasn’t impacted anything yet. The health mandate doesn’t become binding until 2014, went the DOJ’s argument, so shouldn’t Virginia wait until then to sue? But because Virginia and its citizens are going to have to start preparing for the impacts of the federal health insurance mandate well before 2014, the judge agreed with Cuccinelli again that the case was ripe. Check, Virginia has ripeness, and the Commonwealth’s suit was declared by the judge to have achieved subject-matter jurisdiction.

So, it’s time to mark our calendars for oral arguments on October 18, right? Not so fast, my friend. Virginia still had to prove that they were stating a legitimate claim. The next question the judge had to consider was whether, if Virginia was totally right about everything that it was saying in its suit, would it not matter at all because the Federal Government has clear and unimpeachable authority under the constitution to force everyone to have health insurance?

Judge Henry E. Hudson emphatically disagreed with the DOJ. This is the part of the opinion where we get a preview of how the judge might rule later on, and it looks like he’s a Cuccinelli fan, at least in this instance. The judge, for example, said the mandate “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.” Feel free to debate the literally-usage and metaphor-mixage issues with that particular statement in the comments, but if the judge is right, then the claim is certainly a legitimate one that should go to trial. Ultimately, this is the argument upon which the entire case will likely turn.

Cuccinelli’s argument, in a nutshell, is that Congress’s power to regulate interstate commerce doesn’t allow them to force people to engage in interstate commerce, by forcing everyone to have health insurance. The DOJ argued, on the other hand, that everyone already engages in interstate commerce in the health care market because everyone gets sick at some point in their lives, and therefore Congress has a legitimate interest in making sure people can pay for it (which many without insurance, and even several with it, obviously can’t). I agree with the judge’s ruling in this case that the suit should go forward, because there certainly is an issue here that needs to be resolved about what the federal government does and doesn’t have the power to do.

At the same time, it’s pretty clear to me that people’s participation in the market for health care is a matter of interstate commerce, and I also think Judge Hudson is going a bit too far calling it a high watermark for federal commerce power. In 1942 and in 2005 the Supreme Court affirmed that congress had the power to regulate the private growth of wheat and weed for personal consumption. If planting a seed and baking (or getting baked on) the resulting crop is interstate commerce, then affording drugs has to be.

So with the dismissal of the DOJ’s motion, the suit will move onward to arguments on October 18. With the way the judge signaled his opposition to the case, and the conservative makeup of the Fourth Circuit, this victory could be the first of many for Cuccinelli in his effort to get Obama’s health bill before the Supreme Court. But though Cuccinelli can send the district court Quaffle through hoops all he wants, it really only matters who captures the Supreme Court Golden Snitch.