Home Virginia Politics Ken Cuccinelli Loses Yet ANOTHER Legal Challenge to the Affordable Care Act

Ken Cuccinelli Loses Yet ANOTHER Legal Challenge to the Affordable Care Act


Last night, Judge James R. Spencer, United States District Judge for the Eastern District of Virginia, dismissed on the merits – or lack thereof, in this case (see the “flip” for the decision) – the King v. Sebelius case, yet another ridiculous challenge to the Affordable Care Act. The practical effect of the Plaintiffs’ challenge, which was supported by – guess who? – Attorney General Ken Cuccinelli (worst lawyer ever?) with an amicus brief, would have been to deny tax credits to low-income Virginians who are otherwise eligible if they sign up for healthcare through the federally operated exchange available to Virginians. The judge rejected the plaintiffs’ arguments in the opinion (see the “flip” of this post).

Attorney General Cuccinelli announced his support for the case in early November 2013, as well as for a similar case, Halbig v. Sebelius, which was decided in favor of the ACA in January 2014. His office filed a brief in support of the plaintiffs in King in late November (see Cuccinelli press releases on the “flip”).

Needless to say, Ken Cuccinelli’s record in cases like these does not suggest a commitment to the law – or a record of success. In contrast, Cuccinelli’s infinitely superior successor – Attorney General Mark Herring – is batting 1 for 1 in his constitutional analysis so far. 🙂

Cuccinelli applauds Virginia employers suing over onerous Obamacare employer mandate

– AG advocated for scenario that allowed employers to sue to avoid annual penalty –

RICHMOND (November 1, 2013) – Today, Attorney General Ken Cuccinelli applauded the efforts of employers in Virginia and elsewhere to challenge the Internal Revenue Service’s authority to assess Obamacare’s annual $2000 per employee “employer mandate” on organizations that don’t offer health insurance at the workplace. Employers have claimed in court that in states like Virginia, where the state health insurance exchange is run by the federal government instead of the state government, the Obamacare law does not give the IRS the authority to penalize them.

Cuccinelli had advised against — and Virginia opted out of — a state-run health insurance exchange under Obamacare. A primary reason was to provide Virginia employers the opportunity to have a credible court defense if they decided not to pay the mandate.

“If our employers can avoid this crushing new $2000 per employee annual federal penalty, that’s more money they can use to expand their businesses and create more jobs in the commonwealth. Even though the mandate has been postponed a year, in this economy, it would still be a job killer to assess such a heavy-handed tax on Virginia businesses,” said Cuccinelli.

Under Obamacare, also known as the Affordable Care Act (ACA), businesses that employ 50 or more workers and that don’t offer them health insurance will face the annual per employee penalty. Their employees can instead obtain health insurance through an online exchange, also known as a marketplace. Exchanges are either run by the state or federal government. The federal government set up exchanges in states that chose not to create their own.

However, the ACA makes clear that employers can only be penalized if their employees obtain health insurance through a STATE-RUN exchange. The law does not allow the penalty to be assessed in states where the exchange is run by the federal government, such as in Virginia.

To get around this, the IRS said it will ignore the plain language of the ACA and will proceed with penalizing employers whose workers get their insurance from a federally run exchange.

Last week, a federal court in Washington, D.C., denied the federal government’s motion to dismiss the case ofHalbig v. Sebelius, a lawsuit that seeks to force the federal government to live up to the law as written. A case in Virginia, King v. Sebelius, is pending in federal court in Richmond.

“The federal court’s ruling in Halbig clears the way for a full hearing in the case, where the IRS will have to explain its decision to ignore the plain words of the law,” said Cuccinelli.

“It’s ironic that President Obama and his supporters repeatedly say that Obamacare is the law of the land and can’t be changed, yet they keep wanting to unlawfully change the law to their liking and refuse to enforce it as it was actually passed. We wish the challengers in Halbig, King, and similar cases the best of luck.”

To properly allow the IRS to assess the employer mandate in states with federally run exchanges, Congress would have to amend the ACA by passing new legislation.

Cuccinelli challenges Obamacare’s employer mandate on Virginia businesses

– Affordable Care Act as written does not allow $2000 or $3000 per employee penalty to be enforced in the commonwealth –

RICHMOND (November 26, 2013) – Today, Attorney General Ken Cuccinelli filed a brief in federal court challenging the IRS’s enforcement of Obamacare’s employer mandate penalty against Virginia businesses, alleging the penalty cannot be enforced in the commonwealth under the president’s health care law, also known as the Patient Protection and Affordable Care Act (PPACA).

Cuccinelli filed a friend-of-the-court brief – or amicus brief – in the U.S. District Court for the Eastern District of Virginia in Richmond in the case of King v. Sebelius, asserting that because Virginia elected not to establish a health insurance exchange, opting instead to let the federal government establish one, PPACA does not allow the federal government to enforce the penalty against employers who hire Virginians. The penalty is a $2,000 or $3,000 per employee annual tax on employers that do not offer government-approved “affordable” health insurance at the workplace.

“If the courts ultimately rule in our favor and determine that the federal government has to follow the law as it was actually written, Virginia’s job creators can avoid a huge new $2000 or $3000 per employee annual tax, and our companies can instead invest that money to grow their businesses, hire new employees, and create needed jobs. This is precisely why we pushed for a federally run exchange in Virginia instead of having the commonwealth run its own. We knew how the law was written, and no matter how hard the IRS tries to circumvent the law, only Congress can change it,” said Cuccinelli.

PPACA called on each state to create its own government-run insurance exchange where people without employer-based health insurance could shop for private insurance coverage.

For those states like Virginia that chose not to create their own exchanges, the federal government stepped in and set up federal exchanges.

However, the way the law was debated and ultimately written by Congress, PPACA only triggers the employer penalty in states with state-created exchanges, not federally created ones.

The IRS has tried to counter the law by passing a regulation to allow it to assess the penalty in states with federally run exchanges. However, because laws passed by Congress trump regulations passed by government agencies, and because the IRS regulation directly contradicts, rather than implements, the law Congress passed, the IRS lacks the authority to penalize Virginia’s employers under Obamacare.

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