The government is once again defending itself from lawsuits challenging the constitutionality of the new health care reform law, this time filing a motion in Virginia to dismiss that state’s independent lawsuit. Led by conservative Attorney General Ken Cuccinelli the lawsuit, filed just hours after health reform became law, argues that “requiring people to buy health coverage or pay a fee exceeds federal powers limited by the Constitution’s 10th Amendment.”

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!”

POLITICO’s Pulse is reporting that Republicans are objecting to a new flier sent out by CMS informing Medicare beneficiaries about how the new health care law will improve the program. “This goes beyond propaganda and is blatantly political. If this document is really about Medicare, then why is there information in there about 26-year-olds being able to stay on their parents’ policies?” Rep. Dave Camp (R-MI) asked. “The brochure fails to inform seniors that the president’s new law cuts $550 billion from their Medicare,” Sen. John Barrasso (R-WY) added. From the flier:

The Affordable Care Act passed by Congress and signed by President Obama this year will provide you and your family greater savings and increased quality health care. It will also ensure accountability throughout the health care system so that you, your family, and your doctor—not insurance companies—have greater control over your care. These are needed improvements that will keep Medicare strong and solvent. Your guaranteed Medicare benefits won’t change—whether you get them through Original Medicare or a Medicare Advantage plan. Instead, you will see new benefits and cost savings, and an increased focus on quality to ensure that you get the care you need.

Democrats are pointing out that CMS sent similar fliers to seniors after Congress passed the Medicare Part D legislation during the Bush administration, but that’s not the GOP’s only flip-flop. Last year, the GOP defended Humana’s alleged use of federal dollars and data to send deceptive fliers warning Medicare customers that health reform will cut “important benefits and services” and urging them to call Congress to register their concern. Republicans rallied behind the insurer and accused Democrats of “trying to keep seniors in the dark about the consequences of congressional Democrats’ costly government-run health care bills.”

Camp, who is now so critical of the CMS fliers, demanded “to know whether anyone from the White House was involved in the decision to tell companies to stop using taxpayer-subsidized communication to terrify seniors into opposing health reform.” “I have never seen anything like this and I question if politics was the deciding factor,” Camp said at the time. Minority Whip Jon Kyl (R-AZ) also registered outrage, noting “You don’t lose your rights because you happen to sell insurance for heaven’s sake.”

Ultimately, CMS backed down from its investigation of Humana and issued a guidance reminding companies that they “can’t use federal dollars to pay for the mailings or federal data.” But the hypocrisy is fairly stark — the GOP will go to bat for ‘free speech’ if it supports their talking points, but attack it if it doesn’t comport to their particular “propaganda.”