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ObamaCare’s Legal Setback

Virginia Attorney General Ken Cuccinelli talks about his victory for liberty, and the next steps in the Constitutional battle against national health care.

By 12.14.10

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Nationwide protests were "Astroturf." Polling was to get better once Congress passed a bill. And the new law was supposed to boost Democrats' electoral chances in November. Throughout their campaign for national health care, liberals tried to convince us that opposition was a joke, only to be proven dramatically wrong each and every time.

This Monday, a federal judge punctured another liberal fantasy -- that constitutional challenges to ObamaCare were frivolous exercises that would be laughed out of courtrooms.

In a 42-page decision, U.S District Court Judge Henry Hudson ruled that the health care law's requirement that individuals purchase insurance "exceeds the constitutional boundaries of congressional power," rejecting the Obama administration's argument that the Commerce Clause gave it the authority to compel the purchase of coverage as part of a larger health care regulatory scheme.

"This case isn't about health insurance, it isn't about health care, it's about liberty," Virginia Attorney General Ken Cuccinelli, who was mocked by liberals in March when he launched a lawsuit against the law, told TAS in a phone interview Monday evening.

If courts ultimately uphold the individual mandate, Cuccinelli argued, it will give the federal government unprecedented power over Americans' lives. The mandate is also being challenged in a separate lawsuit filed by 20 states led by Florida.

"If the feds win this case, they can do anything," he said. "They can force people to buy cars, asparagus -- the list goes on and is infinite…. It is no underestimation to say that it (would be) the end of federalism. That nothing the federal government does (would be) limited by enumerated powers."

Given the uncertainty that is hanging over states as a result of the pending constitutional challenges, Cuccinelli is in talks with the U.S. Department of Justice to join together in urging the U.S. Supreme Court to expedite hearing the case. But the Obama administration is likely to appeal the decision to the Fourth Circuit.

While that court was once considered one of the most conservative appeals courts in the nation, three recent Obama appointees have tilted the balance, and Democratically appointed judges now outnumber Republican ones by an 8-to-5 margin. Typically, the court hears cases in three-judge panels, but it also has the option of hearing them as a whole, or en banc.

"My focus is on the end point," Cuccinelli explained, asked about the composition of the Fourth Circuit. "I don't mind losing everything except the last one.… One way or the other, it's going to be tight. I think it's going to be close at the Supreme Court as well."

Unlike other types of lawsuits, this one doesn't involve depositions, discovery and witnesses. "This is a pure legal debate," he said. "And the universe of available legal argument is pretty well known at this point. We may reformulate it for different panels, for the Fourth Circuit. But the contours of the legal argument are pretty well settled at this point. Nobody is going to say, 'Aha, I found the silver bullet case!' That isn't going to happen at this point. It's a matter of how the judges along the way -- by that I mean moving up the appellate chain -- respond to the same type of arguments you saw in the District Court."

While Hudson (a George W. Bush appointee) held that the individual mandate "exceeds the Commerce Clause powers vested in Congress under Article I," two other district court judges (appointed by Bill Clinton) have upheld the individual mandate as constitutional, arguing that not purchasing health insurance is an "economic decision" and therefore fair game for regulation under the Commerce Clause.

Speaking of one of the decisions, by U.S. District Court Judge George Steeh of the Eastern District of Michigan, Cuccinelli said, "It adopts such a leap of logic and language, to reach the conclusions that judge reaches, that I hope other judges read it and go, 'Whoa, this is what it takes for these guys to win? I don't want to sign on to this.'"

Congressional power under the Commerce Clause has been greatly expanded by courts from its original meaning in the Constitution, but the individual mandate takes things to a whole new level by saying that it gives the federal government the right to compel the purchase of something. That's why Cuccinelli believes that the mandate can be struck down without overturning prior Supreme Court rulings.

"It is quite an incredible leap to go from regulating actual voluntary activity that affects commerce, to say that doing nothing, and the accumulation of people doing nothing, affects commerce in the sense that if they did something, the market would look different," he said.

Cuccinelli argued that those who may favor expanding federal power now because they support the health care law may one day find that it comes back to haunt them.

"How much would the folks who voted for this bill appreciate a mandate that every American buy a gun?" he asked, laughing heartily. "And not whatever you want, we're going to have a government-approved list of guns. And they're going to be ugly, mean-looking guns that normally these people would try to ban."

Assuming that the case travels through the typical appeals process, Cuccinelli estimated that it would be roughly two years before the Supreme Court issues a decision. The individual mandate component of the law is scheduled to go into effect on January 1, 2014. For now, he says he's "cautiously optimistic."

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Philip Klein is The American Spectator's Washington correspondent. You can follow him on Twitter at: http://twitter.com/Philipaklein