Ken Cuccinelli

Supreme Court Refuses the Speedier Route for Health Care Appeal

by Kathryn Ciano on April 27, 2011

in Economy, Healthcare, Legal, Regulation

Monday morning the Supreme Court rejected Virginia Attorney General Ken Cuccinelli’s request to speed up the process for a ruling on Virginia’s health care appeal.

By rejecting Virginia’s unusual request, the Court denied Cuccinelli’s request that its appeal bypass usual legal procedures to go directly before the nation’s highest court. Instead, the Fourth Circuit Court of Appeals will hear Virginia’s appeal, scheduled for May 10.

So far five federal judges have heard challenges to Obama’s sweeping healthcare overhaul. Judges in Florida and Virginia have declared the law unconstitutional, while Democratic appointees in Michigan, Virginia, and Washington, D.C. have upheld Obamacare.

Virginia’s chief complaint with Obamacare is the individual mandate. Twenty-six states joined Florida’s appeal that Congress grossly overstepped its authority with this unprecedented requirement that individuals buy health insurance or pay a penalty to the government if they do not purchase coverage.

No justices sat out of Monday’s denial of fast-track process. Yet the slow route is new for Obamacare, a highly contested sweeping legislation that passed only when then-speaker of the  House Nancy Pelosi invoked a bizarre, constitutionally-dubious “deem and pass” procedure that unseated civics as we know it and “deemed” the bill popular rather than put it to popular vote the way the American Constitution requires.

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Should Obamacare Be Struck Down In Its Entirety Rather Than Just Having Its Unconstitutional Parts Severed?

by Hans Bader on December 16, 2010 · 1 comment

in Healthcare, Legal, Nanny State, Personal Liberty, Regulation

In his ruling striking down Obamacare’s individual mandate (requirement that people buy health insurance), Judge Hudson in Richmond declined to strike down the rest of the law, believing that the unconstitutional part of Obamacare, which violated constitutional federalism constraints, could be severed from the rest of the law. But the health care law lacks a severability clause, and lawyer Ken Klukowski filed a brief in Florida’s challenge to Obamacare explaining why the entire law should logically be struck down. In Reason, Peter Suderman explains why even if Obamacare is not struck down in its entirety, the courts should at least strike down some other provisions that are related to the individual mandate, such as Obamacare’s ban on insurers taking into account pre-existing conditions.

As I noted earlier in The Washington Examiner, “To justify preserving the rest of the law, the judge cited a 2010 Supreme Court ruling that invalidated part of a law — but kept the rest of it in force. But that case involved a law passed almost unanimously by Congress, which would have passed it even without the challenged provision. Obamacare is totally different. It was barely passed by a divided Congress, but only as a package. Supporters admitted that the unconstitutional part of it — the insurance mandate — was the law’s heart. Obamacare’s legion of special-interest giveaways that are ‘extraneous to health care’ does not alter that.” In short, Obamacare’s individual mandate is not “volitionally severable,” as case law requires.

Moreover, even if a single unconstitutional provision could be severed from Obamacare to preserve the remainder, that would not fix its other constitutional violations. The individual mandate, which exceeds Congress’ power under the Interstate Commerce Clause, is not the only unconstitutional provision in the health care law. Obamacare also violates the Tenth Amendment through Medicaid expansion provisions that transgress spending-clause limits applicable to federal-state programs, as I explain in an amicus brief for two governors in Florida v. HHS.

Law Professor James Blumstein, a constitutional and healthcare expert and advisor to Gov. Phil Bredesen (D-Tenn.), makes a different, but powerful, constitutional argument here that is also based on the Constitution’s spending clause.

Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.

Reactions to Court Ruling Striking Down Part of Obamacare in Virginia v. Sebelius

by Hans Bader on December 14, 2010

in Healthcare, Legal, Nanny State, Personal Liberty, Regulation

Yesterday, a federal judge in Richmond struck down Obamacare’s requirement that individuals buy health insurance. Cato Institute’s Ilya Shapiro reacts to the decision here in an article at CNN. Ilya was the principal author of an amicus brief filed on behalf of the Cato Institute and others in support of Virginia Attorney General Kenneth Cuccinelli’s lawsuit against Obamacare.

The Competitive Enterprise Institute and law professor Randy Barnett joined that brief, which you can find here. I am listed on the brief since I made a few suggestions that were incorporated into the brief based on my past experience in handling federalism cases (such as the Supreme Court’s Morrison decision).  The brief was submitted to the court by the distinguished Richmond lawyer Patrick McSweeney, who has won landmark cases (such as a no-taxation-without-representation case in the Virginia Supreme Court called Marshall v. Northern Virginia Regional Transportation Authority, a case that I earlier discussed at this link).

At Volokh Conspiracy, there are reactions to the decision from law professors Jonathan Adler and Ilya Somin.  I earlier discussed the constitutional issue in the case here, and more recently discussed the harm Obamacare inflicts on medical innovation, employers, the public and access to quality health insurance. The U.S. Attorney General and HHS Secretary responded to the ruling as well, as you can see here.

Ruling in Virginia’s Challenge to Obamacare Individual Mandate Expected Today

by Hans Bader on December 13, 2010 · 1 comment

in Healthcare, Legal, Nanny State, Personal Liberty, Regulation

A ruling in Virginia’s constitutional challenge to Obamacare’s individual mandate is expected later today.  The Competitive Enterprise Institute joined in an amicus brief filed in support of Virginia’s lawsuit by the Cato Institute and constitutional law professor Randy Barnett.  You can find that amicus brief at this link.

Earlier, I discussed why the health care law’s individual mandate (requirement that individuals buy health insurance) exceeded Congress’s power under the Interstate Commerce Clause.  You can find that discussion at this link.  (I was a lawyer in the last Supreme Court case that struck down a federal law under the Commerce Clause, United States v. Morrison, 529 U.S. 598 (2000).)

The judge in the Virginia case, U.S. District Judge Henry Hudson, earlier rejected the government’s motion to dismiss Virginia’s lawsuit at a preliminary phase (a Rule 12(b)(6) motion to dismiss).

Update: Judge Hudson rules against the Obama administration, finding that the individual mandate is unconstitutional.

Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.

Judge Lets Virginia Challenge ObamaCare’s Individual Mandate, Refusing to Dismiss Lawsuit

by Hans Bader on August 2, 2010

in Economy, Health and Illness, Healthcare, Insurance, Legal, Nanny State, Personal Liberty, Regulation

A federal judge in Virginia has allowed the state’s lawsuit challenging the federal individual health care mandate to proceed: “A judge on Monday refused to dismiss the state of Virginia’s challenge to President Barack Obama’s landmark healthcare law, a setback that will force his administration to mount a lengthy legal defense of the overhaul effort.” The judge’s ruling is here.

Ilya Shapiro of the Cato Institute, who filed a brief in support of Virginia that was joined by constitutional law professor Randy Barnett and the Competitive Enterprise Institute, issued the following statement:

Today’s ruling should finally silence those who maintain that the legal challenges to Obamacare are frivolous political ploys or sour grapes. The constitutional defects in the healthcare “reform” are very real and quite serious. Never before has the government claimed the authority to force every man, woman, and child to buy a particular product – and indeed such authority, whether claimed under the Commerce Clause or the taxing power, does not exist (as Cato’s amicus brief in the Virginia case argues). I look forward to further favorable rulings as these lawsuits progress.

I discussed Virginia’s lawsuit here, and the constitutional problems with the health care bill’s “individual mandate” here.

The so-called “individual mandate” is unprecedented and exceeds Congress’s power under the Commerce Clause of the Constitution.  As the Congressional Budget Office noted in 1994, “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

In Supreme Court rulings issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade.”  (I was an attorney in the latter ruling, United States v. Morrison (2000).)  The health care law reaches beyond that to regulate pure inactivity, namely the refusal to buy health insurance even if you don’t need it (when I was young, I went for a decade without ever going to the doctor or dentist).  As UPI once noted, “the weight of Supreme Court jurisprudence seems to favor a Commerce Clause challenge” to the healthcare legislation.

Virginia’s lawsuit only raises federalism-based objections to ObamaCare.  There are other constitutional problems not raised in its suit.

The healthcare legislation also contains potentially unconstitutional racial preferences for minority applicants, and lower standards for treatment of patients in predominantly-minority institutions.  These drew criticism from the Civil Rights Commission.

Law professor Rob Natelson has raised additional constitutional objections to ObamaCare’s individual mandate.

Here’s an additional constitutional issue that occurred to me. Would requiring people to buy health insurance — and thus disclose private medical information to insurers — under government compulsion violate the Constitution by infringing their privacy rights, under rulings like Roe v. Wade and Robinson v. Reed, 566 F.2d 911 (5th Cir. 1978), which allowed a public employee to sue over invasive questions she was compelled to answer in a race-relations seminar? In one respect, it’s a stronger case than in Robinson v. Reed, because that case involved the government acting in its proprietary capacity, where civil liberties are subject to greater restrictions (see Waters v. Churchill, 511 U.S. 661, 673 (1994)), whereas the individual mandate involves the government acting in its regulatory capacity, where its actions and restrictions on civil liberties are subject to tighter limits. (See Carepartners LLC v. Lashway, 545 F.3d 867, 880 (9th Cir. 2008)(“regulated entities” enjoy more protection than government employees).) The fact that private insurers rather than the government would be collecting the information would not automatically obviate a constitutional claim, since the government effectively compels people to provide such information through the government penalties associated with the “individual mandate.” (See Truax v. Raich, 239 U.S. 33 (1916) (although private discrimination does not constitute state action or violate the Constitution, when state law requires the private employer to discriminate, the discrimination by the private employer then does become state action and does violate the Constitution).)

LibertyWeek 95: Tea Party in a China Shop?

by Richard Morrison on June 1, 2010

in CEI Projects, Features, Podcast, Zeitgeist

Richard Morrison and Jeremy Lott welcome special guest David Freddoso to Episode 95 of the LibertyWeek podcast. We take a look at Tea Party politics in the next Congress, climate secrecy at the University of Virginia, consumers getting SLAPPed in court and the Blago corruption trial proceeding in Chicago.

“Health Care Freedom” Bills Pass Virginia Senate

by Hans Bader on February 6, 2010 · 1 comment

in Economy, Health and Illness, Healthcare, Insurance, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony

The Virginia State Senate passed “health care freedom” bills giving citizens the right not to be forced to buy health insurance.  This sets up a potential conflict with the federal health care legislation backed by President Obama and congressional leaders, which contains an “individual mandate” requiring uninsured individuals to buy health insurance.

The bills have a useful function, but not the one offered by many of their supporters, and the federal “individual mandate” is constitutionally dubious for quite a different reason than many of its opponents claim.

Supporters of the bills often claim that the “individual mandate” violates the Tenth Amendment.  But this is the wrong constitutional objection to make. The Tenth Amendment is not violated by federal regulation of private citizens, but rather (under the Supreme Court’s recent decisions) by federal regulation aimed at the states as states — like unfunded mandates ordering state and local officials to carry out federal gun control laws (struck down in the Printz v. United States case) or ordering a state to take title to nuclear waste (overturned in the New York v. United States case), rather than merely conditioning federal funds on its agreeing to do so.

It is the Commerce Clause — not the Tenth Amendment — which is offended by overly broad federal regulation of private citizens, since Congressional regulatory authority is based chiefly on the Commerce Clause, which the Supreme Court (in the United States v. Morrison case) said does not reach non-economic activity.  If Congress cannot regulate non-economic activity simply because it has a major effect on the national economy — which is what the Supreme Court said in the Morrison case – then it can reasonably be argued that Congress cannot regulate complete inactivity, like a young healthy person’s refusal to buy health insurance, even if it may potentially have an effect on the economy.

State officials automatically have standing to raise Tenth Amendment claims –but such claims won’t work against ObamaCare’s individual mandate.  They do not, however, ordinarily have standing to raise Commerce Clause challenges to federal laws, since Commerce-Clause limits are chiefly designed to protect private citizens rather than states against overbearing federal power.  When Congress exceeds its power under the Commerce Clause, that does not necessarily conflict with or violate state law, even if it violates the rights of individual citizens.

The Virginia health care freedom legislation, however, changes this, by creating a direct clash between state and federal law that gives state officials like Attorney General Ken Cuccinelli standing to challenge ObamaCare’s “individual mandate” on commerce clause grounds.  Why?  Because state officials do have broad standing to challenge federal laws that preempt state laws, since a state is deemed to suffer irreparable injury when its law is preempted by federal law.  See, e.g., Coalition for Economic Equity v. Wilson (1997).  In such cases, the courts have jurisdiction to determine whether the federal law is valid (in which case it automatically preempts the state law under the Constitution’s Supremacy Clause) or invalid (in which case it is struck down).

In short, the Virginia health care freedom legislation does nothing to affect the substantive validity (or invalidity) of ObamaCare’s individual mandate, but it does expand who can challenge it, by allowing Virginia officials — not just uninsured individuals who don’t want to buy health insurance — to challenge the individual mandate in court, thus adding legal firepower to any constitutional challenge.  Virginia Attorney General Kenneth Cuccinelli rightly grasps this, citing its usefulness in buttressing his “standing” to challenge the health care legislation in court in a recent Washington Examiner news story.

The “individual mandate” is an unprecedentedly broad attempt to regulate under the Commerce Clause. As the Congressional Budget Office noted in 1994,”A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

As a news story notes, in Supreme Court rulings issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade.”  As UPI notes, “the weight of Supreme Court jurisprudence seems to favor a Commerce Clause challenge” to the health care legislation.

Earlier, Senator Orrin Hatch argued that the “individual mandate” in the health care legislation, which forces people to buy health insurance, is unconstitutional. The Florida Attorney General, Bill McCollum, likewise questioned its constitutionality.

The health care legislation backed by the Obama Administration is deeply controversial, with most Americans opposing it.  It would reduce lifesaving medical innovation, raise many taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets. It would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.

Even absent the “health care freedom” legislation, Virginia might have standing to challenge the legislation’s compulsory insurance provisions — but probably only as to provisions that apply to state employees or contractors, not requirements applicable solely to uninsured private individuals.