But in its motion to dismiss, the federal government argues that Virginia does not have the standing to sue over reform, before reiterating that the individual mandate is “within its [Congress’] authority under the Commerce Clause”:
The Commonwealth asserts it has standing to vindicate a sovereign interest in its new statute purporting to exempt Virginians from any federal requirement to purchase health insurance. A state cannot, however, manufacture its own standing to challenge a federal law by the simple expedient of passing a statute purporting to nullify it…This is particularly so given that the only provision Virginia challenges in this litigation – Section 1501 of the Patient Protection and Affordable Care Act (“ACA”), which requires individuals either to obtain a minimum level of health insurance or to pay a penalty if they do not – will impose no obligations on the Commonwealth, even after the law takes effect some four years from now. The provision applies only to individuals, not the state government. Because Virginia itself neither has sustained a direct and concrete injury, nor is in immediate danger of such an injury, it does not have standing to sue.
Constitutional scholars have warned that the state-based lawsuits will have to overcome two very significant hurdles: 1) the lack of standing and 2) the Tax Injunction Act, which forbids courts from “restraining the assessment or collection of any [federal] tax.” If the Court accepts these arguments, the states case is in grave jeopardy.
But Cuccinelli is not giving up. Last night, during an appearance on Fox News’ On the Record, Cuccinelli reiterated that the federal law conflicted with a state law nullifying the legislation. “Normally the supremacy clause would have the federal law trumping, but it is our position that because the federal law is unconstitutional that Virginia’s law should trump,” Cuccinelli said. “And our injury as a sovereign state is that the federal government is attempting to block the implementation or the effectuation of one of Virginia’s laws. And that is a very basic right of a sovereign state to pass its own laws and to protect those laws. And that’s what we are doing in this lawsuit.”
Virginia will respond to the motion to dismiss by June 7th, and the federal government has to file its reply on June 22nd or before, Cuccinelli said. On his Twitter, he struck a more conciliatory tone. “US filed motion to dismiss HC case last night. Very much what we expected, but they r clearly good attys. Thankfully we have good attys too!”