As Tony Carrk has noted, Virginia’s Attorney General Ken Cuccinelli went to court today to defend his health care lawsuit against the government’s motion to dismiss. Virginia Solicitor General Duncan Getchell argued on the state’s behalf and he insisted that “No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce.” Cuccinelli appeared before the cameras after to make that argument in more colorful terms:

“If the government prevails in this suit, and Congress can force Americans to buy private health insurance in the name of regulating commerce, then Congress will have been granted a virtually unlimited power of ordering you to buy anything,” said Cuccinelli, a Republican, who raised the spectre of “Congress forcing you to buy Chevrolets or any other private product it wants” as part of his reasoning for bringing suit.

“That would amount to the end of more than 220 years of federalism,” said Cuccinelli, who told reporters on a conference call Thursday afternoon that the suit is not “about health care.” “It is about liberty. It is about whether we’ll lose our liberty and allow the federal government to dictate to us what we must buy in the name of its policy goals,” Cuccinelli said.

If there is one thing we learned from Elena Kagan’s rather dry confirmation hearings it’s that the Supreme Court has determined that there are limits to what Congress can do under the commerce clause. It cannot regulate non economic activity. As she put it: “the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what’s necessary in terms of the regulation of the country’s economy, but to have some limits.” “And the limits are the ones that were set forth in the cases that you mentioned, the Lopez case and the Morrison case, which are where the activity that’s being regulated is not itself economic in nature, and is activity that’s traditionally been regulated by the states.”

The decision not to purchase insurance is inherently economic. We all have bodies and they all get old and sick. If we go uninsured and then suddenly fall ill, the cost of care is shifted to other payers. In 2008, the government spent some $43 billion providing uncompensated care to uninsured individuals. In that sense, even the failure to buy a product constitutes an “economic activity.”

Cuccinelli said he expected the Court to rule on whether Virginia’s case should be dismissed in 30 days.

Starting today, Americans who have been uninsured for more than six months and denied coverage on the individual market will be able enlist in a temporary high-risk pool program the government is calling, Pre-existing Condition Insurance Plan (PCIP). Each PCIP will be run by the state or the federal government and will have to keep their premiums at “standard rates,” limit on out-of-pocket medical costs to $5,950 a year for an individual, and maintain an actuarial value of at least 65%. Plans will also be prohibited from varying premiums on the basis of age by a factor greater than 4 to 1.

State and federal governments will have just $5 billion to spend on the program and many expect that the limited resources and the high cost of covering very sick applicants could lead to steep premiums or force states to limit eligibility. Iowa, for instance — which will receive $35 million of the $5 billion federal pot — predicts that it will only have enough dollars to cover 975 sick residents and the federal government says that premiums will vary nationwide:

Prices will vary by state and type of coverage from a low of $140 a month to as much as $900, said Richard Popper, deputy director of a new insurance office at the federal Health and Human Services department. Officials provided details of the plan, which starts enrolling people Thursday.

The price range is so wide because premiums will be keyed to standard individual health insurance rates in each state, which can differ dramatically because of medical costs and the scope of coverage. Independent experts estimate premiums will average around $400 to $600 a month. Younger people will pay less. “There are going to be meaningful premiums that are going to be required to stay in this plan … in the hundreds of dollars,” said Popper, with the Office of Consumer Information and Insurance Oversight.

The pools are an interim measure that will go away after the exchanges become operational in 2014, but if Democrats want to live up to the name of the health care law, they will have to figure out a way to appropriate more funds for the program. The Congressional Budget Office has concluded that the $5 billion will last for approximately two years and many states are worried what happens once that money runs out.

Nobody is protesting louder than the GOP. Last week, 28 Senate Republicans wrote to Health and Human Services Secretary Kathleen Sebelius arguing that the CBO findings are proof that the pools “will fail to provide the assistance promised by supporters of the new law” and this week the office of Rep. Dave Camp (R-MI) put out an entire release complaining about the lack of funds.

Their point is certainly well taken, but given their opposition to spending money on health reform and commitment to repealing the entire law, it’s hard to take seriously. After spending the last year and a half claiming that the government was spending too much money to reform health care and that it should put all of it back, the GOP is now accusing Democrats of not pumping enough money into the system. Should the Democrats move to add more money into into high risk pools, however, the Republicans will probably revert to their original criticism.