Virginia, Other States To Sue Over Health Care Bill

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At least 12 state attorneys general plan to challenge the health care bill once it's signed into law by President Obama. Robert Siegel talks to Ken Cuccinelli, attorney general of Virginia, who is planning to file a lawsuit challenging what he calls the "unconstitutional overreach" of the health care legislation. Virginia already has a law that protects its citizens from a government mandate to buy health coverage.

ROBERT SIEGEL, host:

Another hurdle for the health-care bill will be litigation. Attorneys general in at least 12 states are preparing to challenge its constitutionality. One of them is Ken Cuccinelli, whos attorney general of Virginia. He joins us by phone from Fairfax County, Virginia. Welcome to the program.

Mr. KEN CUCCINELLI (Attorney General, Virginia): Glad to be here.

CONAN: And in your view, what's unconstitutional about the health-care bill?

Mr. CUCCINELLI: The General Assembly of Virginia this year passed a statute that protects Virginia citizens from being mandated to buy health insurance. It passed on a bipartisan basis. And, of course, the federal health-care bill has a mandate to do just that. There's a conflict between those laws. And while normally the supremacy clause leaves federal laws trumping, not when they are unconstitutional. And it is our position that the individual mandate is unconstitutionally overbroad under the commerce clause, that the Congress doesn't have the power to impose this on individuals.

SIEGEL: From what we've read, or at least Ive heard secondhand, it seems that the consensus among legal scholars is the court would be - the Supreme Court would be very unlikely to rule your way. After all, we pay Social Security taxes, we pay Medicare taxes. There are lots of mandates from Washington that we have to comply with.

Mr. CUCCINELLI: Both of the examples you use are taxes; they are not compulsions to buy a product. And both of them were done under the taxing power, which is also given to Congress and to the Constitution. And the Congress clause does not reach this far. You cannot compel someone to buy something from someone else.

SIEGEL: Could one plausibly, though, describe a fee that someone's required to pay in lieu of health insurance as a tax, and therefore an exercise of the taxing power?

Mr. CUCCINELLI: They could only if everyone else had to do it. But everyone else doesn't have to do it. It is not exercise of the taxing power, it is a fine.

SIEGEL: There's an irony to your position, and to that of some other conservative attorneys general in the states, which is what you're saying in effect is, if this had been a single-payer, public option funded with tax dollars, that's OK. That's something that Washington could do. But to have something which is a required participation in a market that involves private providers - you're saying that's what's unconstitutional.

Mr. CUCCINELLI: Well, skipping the first part and going to the second, we are definitely saying that it's unconstitutional. I do think that the Medicare example is probably the closest one, where everyone is taxed to pay for that program. It is a health-care program, so people think of it as a close analogy. And it may be the closest analogy, but no one is compelled to buy anything in that program.

SIEGEL: Well, how does the state, the Commonwealth of Virginia, which I am a resident and taxpayer, how does it compel me to have auto insurance if I want to have a driver's license?

Mr. CUCCINELLI: It doesn't compel you to have auto insurance.

SIEGEL: Well, if I'm going to drive a car, it does, doesn't it?

Mr. CUCCINELLI: Oh, well, you just made a big if. The difference is the big if in the case of the health-care bill - is if you're born, then you are compelled to buy this health insurance. Driver's licenses have always been treated separately, driver's insurance - have always been treated separately. That's deemed a privilege. It is not a right. And if you're going to have it, there are rules that can be put in place for it.

And let's go a step further. You know, Massachusetts has done largely at the state level what the federal government is seeking to do at the federal level. States have the power to do this, but the federal government does not, under the U.S. Constitution.

SIEGEL: Just one other question. The theory behind requiring insurance, mandating insurance, is that unless everybody is in there, kicking in, then we can't spread the costs, which currently people with health insurance pay, in part, covering the uninsured. And in fact, people who don't have health insurance are much less likely to seek preventive care and more likely to turn up at the emergency room.

You have legal objections to it. How is Virginia going to achieve the same aims if it can succeed in knocking down the mandate system through its legal challenge? How do you achieve those same objectives?

Mr. CUCCINELLI: Well, if we assume that the legal challenge is successful, then the question is one back of policy. Attorneys general are not necessarily elected to address policy as the primary focus of their jobs, but...

SIEGEL: But don't you weigh the benefits...

Mr. CUCCINELLI: When I was in the state senate, I made an attempt of doing that by doing things like trying to get our laws changed and adjusted so that people could buy insurance across state lines to increase competition and lower costs, and to create more options for my constituents then, also here in Fairfax County.

SIEGEL: Well, Attorney General Cuccinelli, thank you very much for talking with us.

Mr. CUCCINELLI: My pleasure. Thanks very much.

SIEGEL: It's Ken Cuccinelli, who is the attorney general of Virginia. He spoke to us from Fairfax County, Virginia.

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