Judge Orders HHS Secretary to Respond to VA Lawsuit

STATES FIGHT BACK AGAINST EXPANSION AND POWER OF THE FEDERAL GOVERNMENT

by Debra Mullins

(May 9, 2010) — On April 30, 2010, the Honorable Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia issued an order to Health and Human Services (HHS) Secretary Kathleen Sebelius to respond by May 11, 2010 to the complaint challenging the constitutionality of the new health care reform law. The complaint was filed by the Commonwealth of Virginia Attorney General Kenneth Cuccinelli in response to the Patient Protection and Care Affordability Act (PPCAA) which was signed into law by Obama on March 23, 2010.

On Monday, May 3, officials from the U.S. Department of Justice contacted Cuccinelli and asked him not to file an objection should the federal government submit a request to the Court to grant the government additional time to respond. AG Cuccinelli was quoted to have said, “Needless to say, they called us right up and requested to push that back. We’re discussing it with them.”

The case was originally assigned to District Judge Robert E. Payne, who immediately requested and was granted a recusal order. The case was subsequently reassigned to Judge Hudson, a President George W. Bush appointee. The reason Judge Payne requested and was granted recusal was not disclosed.

The original complaint was filed by AG Cuccinelli on March 23, 2010, shortly after Obama signed the PPCAA into law. The lawsuit challenges the constitutionality of the PPCAA which mandates the purchase of individual health care insurance beginning in January 2014, or else face civil penalties. Mr. Cuccinelli’s petition argues that the new federal law violates the recently approved Virginia Health Care Freedom Act (VA Code 38.2-3430.1:1). The statute exempts citizens of the Commonwealth from the federal mandate to purchase individual heath care insurance and from any subsequent liability that may be incurred. The VHCFA was originally introduced during the VA 2010 General Assembly as HB10 and was approved by the Legislature under SB283 on March 10, 2010. Governor Bob McDonnell held a ceremonial signing on March 24, 2010.

The complaint also contends the federal mandate to purchase individual heath care insurance is a violation of the U.S. Constitution Article I, Section 8, Clause 3, also known as the Commerce Clause, which does not include an explicit provision that grants the federal government the power to enact a mandate that requires an individual to purchase a specified good or service.

On a May 4 swing through southwest Virginia, AG Cuccinelli met with 20 business leaders at the Bristol Chamber of Commerce, where he outlined his plan to fight against the federal health care reform law and the Environmental Protection Agency’s (EPA) declaration that concentrated carbon dioxide emissions are harmful.

Last February, Mr. Cuccinelli filed a motion with the EPA and asked the agency to reopen hearings to consider new climate change data.

Cuccinelli’s remarks on health care reform included:

I believe that (health care reform) bill is one of the greatest erosions of liberty in my adult lifetime.  It was done, as we argued, beyond the scope of the authority the federal government has on the Constitution.

Mr. Cuccinelli has also posted on his Office of the Attorney General website a statement and Frequently Asked Questions (FAQs) which outline why the Commonwealth of Virginia is suing the federal government over the new health care law.

Virginia was the first state to pass a state-specific Health Care Freedom Act; Idaho became the second state when Governor Butch Otter signed HB 391 into law on March 17, 2010.

In a press release issued on May 5, 2010, the American Legislative Exchange Council (ALEC), a non-partisan, membership association for conservative lawmakers, stated plans for Health Care Freedom Acts have either now been announced or introduced in 42 states. The Georgia and Oklahoma Legislatures have already passed similar legislation and forwarded it to GA Governor Sonny Purdue, and OK Governor Brad Henry, respectively.

As previously reported by The Post and Email, the passage of the PPCAA has also spurred 13 other states to join together and file a similar lawsuit challenging the new law’s constitutionality based on the premise it violates the Commerce Clause, U.S. Constitution, Article 1, Clause 9, which limits the powers of Congress, as well as state sovereignty which is guaranteed under the Tenth Amendment. The lawsuit was filed on March 23, in U.S. District Court for the Northern District of Florida, by and through Florida Attorney General Bill McCollum, and within minutes of  Obama’s signing of the PPCAA into law. States joining Florida in the lawsuit are Alabama, Colorado, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Alaska, Texas, Utah, and Washington, Georgia, and five other states.

The Final Scheduling Order for the lawsuit can be read here.