Home Social Issues No “Standing” to Cuccinelli’s Anti-Healthcare Lawsuit After All?

No “Standing” to Cuccinelli’s Anti-Healthcare Lawsuit After All?


With regard to Virginia Attorney General Ken Cuccinelli’s legal (and political) crusade against the federal government’s health care reform efforts, a number of people, myself included, have repeatedly raised the question of “standing.” For instance, back in August 2010 I asked, “How on earth does a judge find that Virginia’s Attorney General has standing to sue the federal government over a law passed by Congress?” The answer: “If it’s an activist conservative Bush-appointed judge, it’s not hard at all.” At the time, I analyzed it this way:

The “standing” argument in large part comes down to the “Virginia Health Care Freedom Act,” which even this Bush appointee judge admits is of a “declaratory nature” with a “transparent legislative intent.”  Essentially, Bob Marshall et al. rushed this law into passage for the very purpose of ginning up a phony “standing” argument so they could sue the federal government over the newly passed health care reform law.  Yes, it’s “lawfully enacted,” but it’s also a mockery of what real law is supposed to be about. I also tend to agree with the Secretary of HHS, Kathleen Sebelius, that Virginia doesn’t have “standing as parens patriae to bring an action against the federal government.”

Well, it now looks like that argument is coming to the forefront once again, and not in the way Marshall et al hoped it would.

The second hearing shifted the focus onto another issue that, particularly in the political debate, has gotten very little attention-even though legal scholars have long suggested it might be significant. That issue is “standing.” The second case, Virginia v. Sebelius, is the lawsuit Ken Cuccinelli organized and filed for his state. But it’s not clear that Virginia even has a right to bring this lawsuit on behalf of its citizens. (Some of the other lawsuits include among their plaintiffs individuals who claim that the mandate has forced or will force them to rearrange their financial affairs.)

E. Duncan Getchall, who spoke for Virginia in oral arguments, cited a new state law prohibiting anybody from being forced to buy insurance. But Katyal argued Virginia passed that law simply to block federal action, something courts have not traditionally allowed states to do, and the judges seemed to agree. During Katyal’s argument, Judge Davis asked, “Would a state that did that, with respect to any statute enacted by congress, lack standing? I don’t see a limiting principal. We talked a lot about limiting principals. How on earth can there be standing if all it takes is that the state enacts a statute and the [attorney general] comes forward?

Katyal’s response? “Exactly, your honor.

In short, it appears that the Fourth Circuit Court of Appeals, where three judges are now considering Cuccinelli’s case, is looking closely at the “standing” issue in this case, and very well could decide that Virginia has none. If they do, that would absolutely be the correct decision. The reality is that Bob Marshall’s “Health Care Freedom Act” was rushed into law specifically so that Cuccinelli could argue “standing” in the courts. And it’s worked pretty well so far, especially before Republican-appointed judges. But now, it appears that a court might find that Virginia doesn’t have “standing” after all. At which point, the entire case falls apart, even apart from the highly questionable “merits” of the core arguments Cuccinelli’s making. In the end, this won’t be the end of it, as the case will almost certainly be appealed and appealed until it reaches the U.S. Supreme Court. However, it’s good to know that at least some judges (usually Democratic appointees) actually think it’s more important to follow the law than to be judicial activists (usually Republican appointees). It’s ironic, given the Republicans’ frequent wails of supposed “judicial activism” from the liberal direction. But then again, these people are masters of psychological projection, ascribing to others the very things that they themselves think, believe, want to do, etc.

  • aznew

    But now that there is a panel willing to consider the case on its legal merits, rather than imposing its own activist conservative ideology, I wish there was some way for this panel to rule on the merits of Cuccinelli’s suit.

    The reason is that his argument for why the mandate is unconstitutional does not even pass the laugh test — it is that bad. The only judge that could possibly pay it any mind is one with a political agenda looking for a peg to hang his hat on to declare the law unconstitutional.

    I’d like to see this argument dismissed on its merits while we have a panel concerned with the law, and not ruled by ideology.

    And by the way, I’m not saying that every GOP-appointed judge is ruled by ideology — only that some are (just as some liberal judges are), and that only a ruling based on ideology could find any merit in Cuccinelli’s argument.

  • cvllelaw

    The Attorney General of Virginia — much like the federal government, perhaps — has only certain enumerated powers:

    The Attorney General shall be the chief executive officer of the Department of Law, and shall perform such duties as may be provided by law.


    He/she is NOT the “chief law enforcement officer of the Commonwealth,” despite what Republicans campaigning for the job suggest in their campaign commercials; the AG only has certain limited law enforcement powers, as set forth in the Virginia Code.  (see http://leg1.state.va.us/cgi-bi… for the 14 specific things that the AG can do in a criminal context)  

    So can the Attorney General act to protect the interests of the people of Virginia, as he may see those interests?

    When I was working for a corporate law firm in the summer, I researched the question of whether the Attorney General has the power to act under the parens patriae doctrine, without a specific enumeration in the Virginia Code giving the power to act.  The parens patriae doctrine, in a nutshell, means:

    Parens patriae is Latin for “parent of the nation.” In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, requiring state intervention. In U.S. litigation, parens patriae can be invoked by the state to create its standing to sue; the state declares itself to be suing on behalf of its people.

    My research, based on looking at a lot of old Virginia cases and early versions of the Virginia Constitution, suggested that the Virginia AG does NOT have the parens patriae power.  If that is true, then the Attorney General is violating state law — acting outside his designated powers — by bringing this suit.  And the so-called Health Care Freedom Act, which enacted Va. Code 38.2-3430.1:1 — http://leg1.state.va.us/cgi-bi… — contains no language authorizing the AG to do anything.