Virginia Attorney General Ken Cuccinelli, who sued the government over health reform just moments after President Obama signed reform legislation, has filed a response to the federal government’s motion to dismiss that state’s independent lawsuit. Over at the main site, Ian Millhiser mocks Cuccinelli for producing “an often-incoherent brief” that “argues that a 236 year-old colonial boycott of British products somehow renders the new health care law unconstitutional.” But judging by the 25-minute conference call Cuccinelli hosted last night about the suit and the detailed press release his office released, the AG is taking this thing very, very seriously:
Of all the controversial items on Cuccinelli’s agenda, he has said his most important initiative is this lawsuit. It also happens to be the issue that tends to get him the most hearty support from the public–though certainly not a few detractors as well.
Maybe all those reasons explain why he has seemed so particularly eager to discuss his position on this case. Along with this evening’s call, his office also put out a a press release that walked through the case’s legal issues in an unusual depth for such documents. In a grid, the release shows each of the federal governments six arguments for dismissal, along with Cuccinelli’s response for each.
The call continued for close to 25 minutes. Cuccinelli discussed why his suit is ripe now, even though the mandate doesn’t go into effect until 2014, why he believes the constitution’s “necessary and proper” clause does not give Congress constitutional authority for the law, why the fine citizens will face if they do not buy insurance should be considered a penalty and not a tax and why that would matter legally. He also explained why his suit should be heard separately from a 20 state suit against the law filed in Florida but why the cases will likely be heard together at the U.S. Supreme Court.
“Virginia has a sovereign interest which has been infringed and we therefore have standing in this case,” he said.
What’s strange is how sincerely concerned Cuccinelli seems about a piece of legislation that doesn’t kick in until the very end of his four-year term in 2014. Cuccinelli charges that the state of Virginia is injured by reform “[b]ecause the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act).” But the injury is self-imposed. Virginia purposely passed a law that contradicted the federal bill, knowing full well that the supremacy clause would invalidate the measure. Rather than deal with other more pressing problems, the state government manufactured standing and is now determined to spend taxpayer dollars and time arguing a highly improbable case.