Cuccinelli ready for the next step in Virginia’s Obamacare challenge

Opinion Zone,Tina Korbe

The sooner Virginia’s lawsuit to repeal Obamacare reaches the Supreme Court, the better, Virginia Attorney General Ken Cuccinelli said today.

“[The status of the health care law] is this enormous cloud of uncertainty hanging over the economy, over the government, how we operate, and we are going to try to move as quickly as we can,” Cuccinelli said after an address to The Heritage Foundation President’s Club meeting in Washington. “We don’t know how many cases we’ll get combined with as we go along -- that can slow things down -- but, really, America needs an answer to this question [of whether the individual mandate will be allowed to stand].”

Cuccinelli said he is hopeful the district court judge in Virginia’s case will rule before next Thursday. That’s the date when oral arguments begin in a second legal challenge to Obamacare filed in Florida by 20 attorneys general and the National Federation of Independent Business.

Cuccinelli also remains “cautiously optimistic” that the judge’s ruling will be favorable.

“The nature of [the judge’s] questioning in the summary judgment hearing and … his order from the summary when we survived the federal government’s motion to dismiss … point in a good direction,” Cuccinelli said.

The situation in Florida looks promising, too, he said. But, even should both judges rule in favor of the states, an appeal to the country’s highest court is likely -- and success at that level is not guaranteed. Because no facts are in question in these cases, only legal argument, the Supreme Court will essentially start from scratch when it hears the cases.

“In a case that was fact-based, whoever won [at the district level] would get the presumption of the facts in their favor [at the appellate level],” Cuccinelli said. “This is a pure legal argument.”

Cuccinelli’s case asserts President Obama’s health care law is unconstitutional because it mandates individuals to buy insurance -- a power that the attorney general argues is not enumerated in the Constitution. The federal government maintains it has the power to mandate that citizens must be covered by health insurance under the U.S. Constitution’s commerce clause.

Even conservative justices have made decisions in the past that could cause Cuccinelli concern. Justice Antonin Scalia wrote the majority opinion in Gonzalez v. Raich, what Cuccinelli calls “the most far-reaching commerce clause case ever,” and Justice John Roberts joined the majority opinion in United States v. Comstock, a case in which federalism fared poorly.

Justice Kennedy, however, who is often thought of as a swing vote, could be an ally in this case, Cuccinelli said.

“[Kennedy] has been rock solidly consistent in support of structural federalism, so it is actually a little bit hard for me to see him breaking from that tradition of his,” he said. “What I tell people is, I think it will end 5-4, I just don’t know which way.”

However it goes, Cuccinelli thinks time is of the essence.

“If we’re going to lose, I’d rather lose in 2011 than in 2013 because of the uncertainty between now and then,” he said. “But I’d rather not lose at all.”

Tina Korbe is a reporter in the Center for Media and Public Policy at The Heritage Foundation.

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