In nixing Virginia’s health care lawsuit, 4th Circuit reveals Cooch is strictly amateur hour


    The Fourth Circuit Court of Appeals today dismissed (you can read the ruling here) Ken Cuccinelli’s lawsuit seeking to overturn health care reform on the grounds that the Commonwealth lacked jurisdiction to file the suit.  The vote was 2-1, but the dissenting judge ruled that while he would have found jurisdiction, he would have upheld the Constitutionality of the individual mandate, so in effect the vote was 3-0 against Cuccinelli.

    Essentially, the Appeals Court said that because health care reform imposed no obligations or duties on the state, or affected the state (as a distinct entity) in any way, Virginia had no interest in legally challenging it.

    Indeed, Cuccinelli and Gov. McDonnell realized this jurisdictional problem existed from the get-go, which is why they tried to manufacture a state interest in challenging the law by passing the Virginia Health Care Freedom Act, a law that, in effect, states that citizens of the Commonwealth cannot be forced to buy health insurance.

    (More on the flip)

    Of course, this artifice did not fool the three Federal Judges. The Cuccinelli/McDonnell trickery did not work because the VHCFA was not a law that was ever intended to be enforced, and thus was a phony as a three dollar bill.

    “[T]he only apparent function of the VHCFA,” the court said, “is to declare Virginia’s opposition to a federal insurance mandate.” How did the court know that the statute had merely this shallow and blatant political purpose, as opposed to serving any legitimate legislative purpose? Well, the court cited the timing of the law, and the political statements of Gov. McDonnell and Lt. Gov. Bolling when the governor signed the law.

    “While this declaration surely announces the genuine opposition of a majority of Virginia’s leadership to the individual mandate,” the court said, “it fails to create any sovereign interest in the judicial invalidation of that mandate.”

    The passage of the VHCFA and the effort to hang jurisdiction on it was doomed from the start — something that should have been obvious to a first year law student who had researched the legal issue.Indeed, reading the court’s discussion of the case law governing this area, it wasn’t even a close call. The fact is that every Virginian, no matter how you feel about health care reform, should be outraged that our attorney general’s time and the Commonwealth’s money and resources were wasted on this nonsense.

    What this all shows is that the Cuccinelli’s legal attack on health care reform was pure amateur hour and a waste of time and precious Commonwealth resources.  And while Cuccinelli’s extremist ideology certainly renders him unift to hold public office, IMHO, this decision should give even the most ardent conservative pause with respect to Cuccinelli’s competence.  

    • Mallsus2


    • Virginia Organizing Celebrates U.S. Court of Appeals Health Care Ruling

      Court Ruling Upholding the Health Care Law is a Victory for All Virginians

      Richmond, VA – The United States Court of Appeals for the Fourth Circuit in Richmond ruled to uphold the health care law today, including the responsibility “mandate” provision.

      The United State Court of Appeals for the Fourth Circuit heard arguments for Commonwealth of Virginia v. Sebelius, Attorney General Ken Cuccinelli’s challenge to the Patient Protection and Affordable Care Act on May 10, 2011. The case was heard concurrently with arguments in Liberty University v. Geithner, a separate challenge to the law brought by Liberty University.

      The case is expected join with other lower court case and reach the Supreme Court.

      Virginia Organizing, a statewide grassroots organization that has worked on health care reform for the last three years, issued the following statements about the United States Court of Appeals for the Fourth Circuit ruling today in a lawsuit challenging the Affordable Care Act:  

      “Today we celebrate the end of Cuccinelli’s health care lawsuit which wasted time, taxpayer dollars and sought to return us to a status quo that leaving a million Virginians without coverage and putting the insurance companies back in the driver’s seat,” said Jim Lindsay of the Virginia Organizing Health Care Committee. “Many Virginians are already seeing the benefits of the law and do not want to overturn or repeal it. The elected officials pursuing this lawsuit should recognize that it is contrary to their constituents’ interests and refocus their resources on protecting, rather than undermining, consumers.”

      “As a physician, I have observed overcrowding in the emergency department and unnecessary suffering resulting from Americans lack of health insurance.  I applaud the decision by the Federal Appeals Court today.  Upholding the Affordable Care Act is critical to improving the health and health care system in our country,” said Dr. Chris Lillis, Fredericksburg physician and member of the Virginia Organizing Health Care Committee.

      “The Fourth Circuit Court did the right thing by upholding the health care law. The decision is a relief because many small business owners like myself are already seeing the benefits of the health care law through small business tax credits. I received tax credits last year that helped me afford rising premiums for my 25 employees. Upholding the Affordable Care Act means upholding my ability to provide health insurance for my employees,” said Kevin Wilson owner of Sticky To Go-Go and The Cellar Door in Richmond.

      How the Affordable Care Act Helps the People of Virginia

      Virginians are already benefiting from the ACA: young adults have returned to their parents’ health insurance policies, adults are accessing the high-risk pool, and pre-existing condition limits for children have been eliminated. Virginia Organizing is interested in keeping those benefits and in accessing the additional reforms and improvements contained in the ACA legislation.

      Cracks Down on Insurance Company Abuses

      * Insurers will no longer be able to deny you coverage because of a pre-existing condition or drop your coverage when you get sick.

      * Insurers will no longer be able to charge higher premiums based on your gender or health status.

      * Virginians have been paying more for coverage and getting less. Insurers finally will be required to spend more of our premium dollars on actual medical care and quality measures.

      Ends Runaway Premiums for the Middle Class

      * Uninsured Virginians will be able to gain coverage through a competitive marketplace called an “exchange.” By forcing insurance companies to compete, exchanges will drive down costs, guarantee choice, and put consumers in control.

      * People with moderate incomes (for example, a family of four making up to $88,000) will get help paying their premiums.

      Provides Financial Security and Stability

      * All of Virginia’s 1,072,000 seniors and people with disabilities on Medicare will no longer have to pay for preventive services, and many will have more help paying for prescriptions.

      * Health reform will set limits on how much families will have to spend on health care out of their own pockets (on copayments, deductibles, etc.).

      * Insurers will no longer be able to put yearly or lifetime limits on how much they will pay for your care if you get sick.

      * Health reform will reduce the federal deficit by $138 billion in the next 10 years and will save $1.2 trillion more in the following two decades.

      Expands Coverage, Saves Lives

      * Young adults can stay on their parents’ health plans up to the age of 26.

      * Health reform will save lives. Without reform, an estimated 5,600 Virginians will die prematurely due to a lack of health coverage over the next decade.

      * 724,000 uninsured Virginians will gain insurance coverage by 2019.

    • Not to pat myself on the back too much, but here’s what I wrote on 5/7/10: “Cooch’s Health Care Lawsuit: No ‘Standing,’ No Clue”


      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…

    • Ha. Ha. Ha.

      To permit a state to litigate whenever it enacts a statute declaring its opposition to federal law, as Virginia has in the VHCFA, would convert the federal judiciary into a “forum” for the vindication of a state’s “generalized grievances about the conduct of government.”  Under Virginia’s standing theory, a state could acquire standing to challenge  any federal law merely by enacting a statute  — even an utterly unenforceable one  — purporting to prohibit the application of the federal law.  For example, Virginia could enact a statute declaring that “no Virginia resident shall be required to pay Social Security taxes” and proceed to file a lawsuit challenging the Social Security Act. Or Virginia could enact a statute codifying its constitutional objection to the CIA’s financial reporting practices and proceed to litigate the sort of “generalized grievance[]” about federal administration that the Supreme Court has long held to be “committed to the . . . political process.”

      What a joke our Attorney General is, I still can’t believe the people of Virginia elected this fool over the smarter-than-hell, sane Steve Shannon.  I hope Virginians now realize how badly they screwed up on this one.

    • “This case, however, differs from Liberty and every one of the many other cases challenging the Act in a critical respect: the sole provision being challenged here — the individual mandate — imposes no obligations on the sole plaintiff, Virginia.”

      In other words, Cuccinelli is uniquely, and wildly, wrong in his tilting-at-windmills lawsuit. He’s just been wasting his time, and the peoples’ of Virginia, as well money, in this wild goose chase. Heckuva job, dude!

    • Jim B

      Besides this dude look at the other fools trying to represent us in the state govt and the federal govt.  

    • The 4th circuit isn’t exactly known for being a bunch of flame-eyed liberal activist judges.  To say the least.

    • RICHMOND, VA (September 8, 2011)- Virginia Attorney General Ken Cuccinelli responded today to the U.S. Fourth Circuit Court of Appeals decision in Virginia’s lawsuit against the federal government’s health care reform act.

      “Obviously, we are disappointed in the ruling. Our disappointment not only stems from the fact that the court ruled against us, but also that the court did not even reach the merits on the key question of Virginia’s lawsuit-whether Congress has a power never before recognized in American history: the power to force one citizen to purchase a good or service from another citizen,” said Cuccinelli.

      In summarizing the ruling, Cuccinelli noted that, by resting its decision on an alleged lack of standing by the commonwealth to even bring its lawsuit, the court dismissed Virginia’s claimed injury as illusory.

      “Contrary to the court’s suggestion, this suit has always been about vindicating the power of the Virginia General Assembly to legislate about a subject that has historically been viewed as falling within the areas the Constitution left to the states. Health, safety, and welfare issues have long been recognized as being part of the powers reserved to the states by the Constitution,” Cuccinelli said.

      Cuccinelli noted that the court’s stated reasons placed the ruling’s reasoning at odds with constitutional design. “In rejecting Virginia’s right to bring the action, the court said that allowing such suits would allow the states to serve as ‘roving constitutional watchdogs.’ This was exactly a role that the Founding Fathers planned for the states to have. As James Madison wrote, under the Constitution, ‘the power surrendered by the people is first divided between two distinct governments…Hence a double security arises to the rights of the people. The different governments [state and federal] will control each other…'”

      Cuccinelli continued, “Not only does the court’s opinion reject the role of the states envisioned by the Constitution, it dismisses an act of the Virginia General Assembly-the Health Care Freedom Act-as a mere pretense or pretext. It is unfortunate that the court would be so dismissive of a piece of legislation that passed both houses of a divided legislature by overwhelming margins with broad, bipartisan support.”

      Cuccinelli vowed to appeal the court’s ruling.

    • kindler

      …that this will be just one in a long string of court rulings to come against Clowninelli.  I cannot imagine how any court that is not smoking some potent weed could possibly uphold his police state action against UVA, or his ridiculous suit challenging EPA’s finding that climate change endangers public health.

      It’s easy for anyone to shake their fist at the government and file suit against them, and Cuccy has gained his notariety and popularity from doing so.  But with all these (ridiculous) cases in court, he now faces the challenge of whether he can actually win any of them.

      The more he loses, the more ridiculous he will look, and the more he will lose all but the most clinically insane of his followers.

      Couldn’t happen to a nicer guy, though!