Ken Cuccinelli

Officials in Virginia a short time ago joined attorneys general in a dozen other states to object to the provisions of “Obamacare,” the pending legislation that would give the federal goverment unprecedented control of health care, and the state’s incoming attorney general is chomping at the bit to get to work on the issue.

Ken Cuccinelli, a Republican who will take the oath of office this weekend, said it’s a simple matter of the government lacking authority to impose the decisions members of Congress are making for their constituents.

“I believe the individual mandate violates individual rights,” Cuccinelli said in an interview. “I do not believe the federal government has the legal authority in the [U.S.] Constitution to mandate that individual Americans purchase health insurance.

“A corollary to that is that the [Senate] bill, as it is currently written, requires state governments to set up healthcare exchanges to facilitate individual mandates. I do not believe that under the Constitution the federal government has the authority to dictate or effectively force states into its bureaucracy,” he said.

The opposition is just one of the moves afoot to challenge the Democrat plan should it eventually succeed and be adopted as law. The outgoing Virginia attorney general, Bill Mims, had joined with 12 other Republican state attorneys general to object to the Senate’s version, which exempts Nebraska from paying Medicaid fees.

The group wrote to House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Harry Reid, D-Nev., late last month asking that the provision by Sen. Ben Nelson, D-Neb., be struck from the bill to “avoid litigation.”

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They also warned, “By singling out the particular provision relating to special treatment of Nebraska, we do not suggest there are no other legal or constitutional issues in the proposed health care legislation.”

The Nebraska provision was inserted to exempt the state from paying significant costs of health care that taxpayers in other states will be required to pay. It was added to obtain support for the bill from Nelson, who had a number of objections.

Cuccinielli, a strong advocate for states’ rights as outlined in the Tenth Amendment of the U.S. Constitution, said his office simply will not defend a statute that violates the state or U.S. constitutions.

He also said he will be working with attorneys general from other states on that very issue.

For his own state, he’s hoping the General Assembly will adopt a law that would protect its citizens from anything unconstitutional in the federal health care plan. State Delegate Bob Marshall, a Republican, already has formulated a bill.

“I haven’t looked at the particulars or the language of the bill, but I’ve certainly talked to Bob Marshall about it and I completely support that concept. I certainly would be aggressive in trying to defend Virginians against any particular aspect of the [federal] bill. I would enthusiastically support that kind of general expression in the Assembly,” Cuccinelli said.

Marshall’s plan states, “No law shall restrict a person’s natural right and power of contract to secure the blessings of liberty to choose private health care systems or private plans. No law shall interfere with the right of a person or entity to pay for lawful medical services to preserve life or health, nor shall any law impose a penalty, tax, fee, or fine, of any type, to decline or to contract for health care coverage or to participate in any particular health care system or plan, except as required by a court where an individual or entity is a named party in a judicial dispute. Nothing herein shall be construed to expand, limit or otherwise modify any determination of law regarding what constitutes lawful medical services within the Commonwealth.”

It remains to be seen whether the bill or similar legislation will pass and be signed into law. But whatever the outcome, Cuccinelli is vowing to do everything in his power to protect Virginians from government overreach.

The pending federal legislation, while not final, creates fines and jail sentences for those who do not comply by purchasing the proper health insurance.

What will happen if the federal government starts imposing its health care choices on Virginians?

“We would certainly stand by the individual and do what we could – what we have legally available to us to support them,” Cuccinelli said. “In fighting off the unconstitutional aspects of the bill that they would have been victimized by, that would certainly give them standing.”

“We also have a parens patriae statute in Virginia that allows the governor to sue on behalf of citizens. Now that doesn’t automatically give Virginia standing to carry on such a suit, but it certainly increases the probability of success,” he said.

“Standing is a critical question in any constitutional litigation,” he continued. “And I have undertaken constitutional litigation. I beat the Commonwealth of Virginia on an election law statute.”

In 2006, Cuccinelli was lead attorney in a First Amendment case, “Larry Miller v. Michael Brown,” in the United States Court of Appeals Fourth Circuit in Richmond. His law firm, Cuccinelli & Day of Fairfax, Va., partnered with attorneys from Crump, Childress & Gould of Richmond.

At that time, Virginia Democrats wanted to vote in the June 2007 Republican primary and the State Board of Elections effectively declared that the “open primary law” allowed Democrats to invade the process.

Cuccinelli argued that the right to free association under the First Amendment of the U.S. Constitution forbids the state from dictating to political parties who may participate in their nominations. He likened it to the Rotary Club letting members of the Lions Club vote for Rotary officers.

“Under the First Amendment, political parties have the right to define their own membership without interference from the state,” he said.

“We maximize freedom for employment, for employers and employees, and I will do everything I can to protect that,” he said. “I believe there are aspects of the proposed card-check legislation that would clearly be constitutionally questionable.

“And the whole scheme would be destructive to jobs and opportunity in Virginia. To the extent that the federal government is overreaching in this area, it’s an opportunity for me to not only defend our Constitution, but to defend the opportunity for Virginians to work,” he said.


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