Virginia argues whole health reform law unconstitutional, not just insurance mandate

The U.S. Supreme Court is also set to take up up Virginia’s request that it step in directly on April 15.
Tue Mar 29, 2011 - 1:53 pm EST

RICHMOND, March 29, 2011 ( – Virginia’s attorney general (AG) has filed opening briefs with a federal appeals court, arguing that the whole national health care reform should be struck down, and not just the individual mandate. Meanwhile the U.S. Supreme Court is getting ready to consider the state’s plea for expedited review of the constitutionality of the Patient Protection and Affordable Care Act (PPACA).

In his brief, Virginia AG Ken Cuccinelli argues to the 4th Circuit Court of Appeals that U.S. District Judge Henry Hudson should have struck down the entirety of PPACA when he ruled the individual mandate unconstitutional.

Hudson ruled in December that Congress had no authority under the U.S. Constitution to mandate individuals buy health insurance or pay a fine to the federal government.

That provision is the linchpin of the national health care reform law; however, rather than nullify the entire act, Hudson chose instead to sever the individual mandate from the rest of the law.

The Virginia brief argues that PPACA should be struck down because there is no “tradition of using the Commerce Clause to require a citizen to purchase goods or services from another citizen.”

A friend of the court brief, filed by U.S. House Speaker John Boehner and other Congressmen, also argues that the whole law should be struck down if the individual mandate is unconstitutional, because the mandate is an essential component of the reform law.

“Although an earlier version of the health care legislation contained a severability clause, the PPACA does not, and, by the government’s admission, the PPACA’s remaining provisions cannot function without the individual mandate,” stated the brief. “These two factors lead inexorably to the conclusion that Congress would not have passed the PPACA without the individual mandate.”

At the same time, Virginia has asked the Supreme Court to step in directly, citing the “crippling uncertainty” faced by the states, which are tasked with implementing PPACA when its constitutionality is in doubt. The Supreme Court will take up Virginia’s request for expedited judicial review on April 15. If the high court declines, then the appeals court will hear the case on May 10.

The U.S. Justice Department is opposed to expediting the appeals process, although nearly all observers agree litigation over PPACA will reach the high court eventually.

However, the longer the legal challenges take to resolve, the more entrenched the new health care reforms become, raising the possibility that the high court will become more reluctant to overturn the law than at an earlier stage.

  health care, ken cuccinelli, obama, virginia

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