Home Virginia Politics Cooch’s Health Care Lawsuit: No “Standing,” No Clue

Cooch’s Health Care Lawsuit: No “Standing,” No Clue


If there was any doubt that Ken Cuccinelli is wasting the Attorney General’s office’s time and resources (aka, Virginia taxpayer dollars) on his frivolous lawsuit against health care reform, I’ve got some material for him to read.

Specifically, I refer Cooch to this:

…neither of the courts handling these cases, nor any other federal court, is likely to address-let alone resolve-the merits of the issue in the context of an attorney general’s lawsuit. Instead, these cases are all but sure to be promptly tossed out of court for procedural reasons obvious to a first-year law student.

The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn’t sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue: Their health could deteriorate and they could actually need health insurance; they might get a job with health benefits; or they might just have a change of heart. Any or all of these contingencies are quite likely, if a Massachusetts state government survey showing that only 2.6 percent of Massachusetts residents do not comply with the mandatory insurance requirement in that state’s law is any indication. In lawyers’ language, not only will the state attorneys general never have standing to bring these claims on their own; even the claims of real individuals are not yet “ripe.”

So, no “standing,” not yet “ripe,” utterly clueless. Other than that, Cooch’s lawsuit is a great idea! Heh.

By the way, I checked with Chap Petersen – a far better attorney than Ken Cuccinelli will ever be, and that is not meant as a “backhanded compliment” –  and he said “I agree with it in respect to the fact that the Fed law does not take effect til 2014 so the issue is not yet ripe.” Chap added that, “[i]n the meantime, the requirement could be amended or repealed — or the state law (like Virginia’s) that prohibits the requirement could be repealed.” In other words, Cooch’s lawsuit is premature from a legal perspective and should be promptly thrown out of court. If only we could throw Cooch out office for gross incompetence and overall insanity…

  • Teddy Goodson

    we could throw Cooch out of office for gross incompetence…” I would think that might possible, but only if (correct me if I’m wrong, please) a citizens’ petition to that effect is handed to the legislature, which must then impeach him, or decide if it wants to impeach him. Kind of a roundabout re-call, and unlikely to happen.

    However, when I think about it, Cuccinnelli is the gift that keeps on giving. What I mean is, while he may do some damage, the longer he keeps up this damfoolish behavior, the more he invigorates Democrats and turns independents into Democratic voters. He may be playing to his base, but how much bigger is that going to grow? I believe he is inadvertantly cultivating the garden of voters for Democrats.

  • WestEndVoter

    You might want to look at the lawsuit.


    It is filed under Declaratory Judgment jurisdiction:

    In a case of actual controversy within its jurisdiction…any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

    See 28 U.S.C. 2201(a). (Note: the pleading, seemingly in error, cites 28 U.S.C. 2001, et seq.)  

    DJ jurisdiction over a controversy can arise prior to an actual conflict.  The alleged controversy in this case is that the Federal scheme purportedly conflicts with Virginia’s, and Virginia wants a Federal Court to weigh in on the issue so that it knows which scheme to apply.  Obviously, Virginia can’t just wait until 2014 to make preparations.  I assume that Chap’s statement was just dealing with general jurisdiction, not DJ jurisdiction — otherwise his statements do not seem to be on point.

    Virginia’s pleading also implies that it needs to make preparations to administer an unconstitutional statute, and that these preparations represent an undue expense.  If challenged, such an argument might be factually intensive (I need to hire X people to administer the HCR statute, etc.).  Whenever you get facts involved, very little is “promptly tossed.”  There is a very real chance that the U.S. will not even contest jurisdiction, because that may really add to the expense of this suit.  It is cheap to throw around textbook cases on the commerce clause, and contest Virginia’s complaint.  It is not cheap to hire expert witnesses, conduct depositions, etc., which might be required if it were to contest Virginia’s standing. Furthermore, U.S. Attorneys and Virginia attorneys usually play on the same team, and I would hope that they would not waste their finite resources on what many would consider to be “litigation tactics.”

    I realize that this is a political website, but the legal system and scientific fields really get dragged down when issues at dispute in those fields get politicized.  I do not want Mann to be the object of the AG’s apparent political witch-hunt, anymore than I would want an attorney to be the object of a political witch-hunt.  If you have an ethical complaint against Cuccinelli (which includes “gross incompetence”), feel free to make it:


    I’m pretty sure there is someone at the VSB you can call for alleged “overall insanity” as well.    

  • TomPaine

    after all he is only playing to his wingnut base!