Sebelius Claims VA Attorney General Cuccinelli Sued The Wrong Person In Health Care Challenge

Earlier this month, a judge in Virginia ruled that the state’s lawsuit challenging the individual mandate in the new health care law should proceed partly because the state’s recently enacted ‘Virginia Health Care Freedom Act’ — which protects Virginia citizens from the individual requirement — conflicts with the federal requirement and “therefore encroaches on the sovereignty of the Commonwealth and offends the Tenth Amendment of the Constitution.”

The lawsuit names HHS Secretary Kathleen Sebelius as the defendant, but now in an interesting wrinkle, Sebelius says Attorney General Ken Cuccinelli “got the list of defendants wrong.” In her response to the Judge’s ruling:

Deny, and separately aver that while the defendant, Kathleen Sebelius, in her official capacity as the Secretary of the United States Department of Health and Human Services, is responsible for administering many provisions of the ACA, the Secretary of the Treasury is primarily responsible for the administration of the minimum coverage provision that the plaintiff seeks to challenge in this action. […]

The complaint should be dismissed for failure to join a necessary party, namely the Secretary of the Treasury, who, unlike the defendant, is charged with the implementation of Section 1501 of the ACA.

Cuccinelli may be able to amend his complaint and add the necessary party, but this could also force the judge to make a finding that the mandate is administered by the Treasury Department, which itself would undermine Cuccinelli’s claim that the mandate is not a tax.

The reply also argues that Congress has the authority to impose a minimum coverage provision — also known as the individual mandate –since it’s “essential to ensure the success of the ACA’s larger regulation of the interstate health insurance market.”

Significantly, Florida’s challenge mentions Sebelius, Treasury Secretary Tim Geithner and Labor Secretary Hilda Solis as defendants.