From Attorney General Cuccinelli’s newsletter regarding the recent 4th circuit court ruling on Obamacare:
Sept 16, 2011
Dear Fellow Virginians and Americans,
As you all probably know, we heard from the Fourth Circuit last week in Virginia’s healthcare lawsuit.
The court decided unanimously to throw the case out on standing and not address the merits of our constitutional arguments.
However, the story is far more complicated than that. You may recall that Liberty University’s suit was heard at the very same time as Virginia’s. The court threw that case out as well; however, two of the judges stated what they would have done on the merits, and that has interesting implications as we press on to the Supreme Court.
Here are the things I’m going to address today:
-The court’s ruling that Virginia lacks standing to bring the lawsuit;
-The implications of the court’s standing ruling for state sovereignty; and
-The extraordinary position of the court as compared with Federalist 51 (you know, written by that radical guy by the name of James Madison…).
Then I’ll do a quick walk-through of the Liberty ruling, and I’ll explain how it relates to Virginia’s case. Finally, I’ll note the three unique aspects of what this court did last Thursday that make the decisions true outliers that need to be corrected.
The Court’s Ruling
Before the federal health care bill became law, Virginia passed the Virginia Health Care Freedom Act (VHCFA). The VHCFA applies to employers and governments in Virginia and anyone else who might seek to force a Virginian to buy health insurance. With limited exceptions, it provides that no one can mandate that a Virginian buy health insurance.
Along came the federal government and passed the federal health care bill. In that bill was the individual mandate requiring most all citizens to buy federal government-approved health insurance. The individual mandate conflicted with the VHCFA, and under the supremacy clause the federal law would trump; however, the supremacy clause does not apply if the federal law is unconstitutional.
Thus was born Virginia’s lawsuit.
We sued the day the President signed the bill – May 23, 2010 – the 235th anniversary of Patrick Henry’s ‘give me liberty, or give me death’ speech. So began our fight for liberty against the unconstitutional federal mandate.
To bring any lawsuit, a plaintiff must have what is called “standing.” Standing is the right to sue.
To have standing, a plaintiff has to be able to show three things: 1) an injury; 2) that is currently occurring or is certain to occur; and 3) the court must be able to remedy the injury if the plaintiff wins.
Virginia’s injury is that the federal government’s health care law stops Virginia from exercising its legal authority to regulate health insurance mandates using the VHCFA.
This is an injury unique to a state. You and I don’t have a code of laws. States do. And States have the right to protect their code of laws. In fact, as attorney general, I have an obligation to protect Virginia’s laws (the district court judge in our case explicitly noted that responsibility).
Our suit was premised on redressing this sovereign injury. However, the Fourth Circuit rejected our position, stating that, to allow Virginia to bring this suit would allow States to act as “roving constitutional watchdogs” over the federal government. And yes, that quote comes straight from the opinion!
We now know what caused the earthquake in Virginia – James Madison obviously saw a draft version of the final order and rolled over in his grave!
This ruling is an extraordinary assault on state sovereignty and the role for States envisioned by the Founders in our constitutional system.
If you read Federalist 51 – written by that constitutional radical from Virginia, James Madison – you will find that States are supposed to check federal power when the federal government gets outside its constitutional authority!!!
From Federalist 51:
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments