Cuccinelli argues health-care suit on Capitol Hill

Attorney General Ken Cuccinelli this morning took his case against the new federal health care law straight to the folks who approved it less than a year ago  --  Congress.

But what a difference a year makes. When the landmark Patient Protection and Affordable Care Act passed in March 2010, the House of Representatives was controlled by Democrats, and no Republicans voted for the measure.

Last November’s midterm elections changed that, so today Cuccinelli, a rising conservative star whose lawsuit made headlines across the nation, was at the Capitol to explain the reasoning behind the lawsuit to mostly sympathetic ears on the GOP-controlled House Judiciary Committee.

“We do not seek to overturn any prior decisions of the U.S. Supreme Court or develop any new doctrine,” Cuccinelli told the committee in prepared remarks. He characterized Virginia’s challenge to PPACA as “modest.”

“Rather, within the boundaries of constitutional text and precedent, we simply seek a determination that in passing the individual mandate and penalty as part of the Patient Protection and Affordable Care Act, Congress exceeded the powers granted it by the Constitution.”

Virginia was among the first of what has become more than two dozen states to challenge the health care overhaul.

Rep. John Conyers, D-Mich., the ranking Democrat on the committee, said Congress unquestionably has the power to regulate the interstate health care market, which accounts for roughly one-sixth of the nation's economy.

Conyers echoed the position of Justice Deptartment and administration officials in opposition to the lawsuits challenging the health care law. Namely, that congress was within the scope of its authority, and that all Americans will at one point in their lives will use health care. The individual mandate, he said, "recognizes the reality that we are all active in the health care market" and seeks to regulate a market where the uninsured cost the system $43 billion a year.

Cuccinelli was introduced by committee member and Virginia Rep. Robert Goodlatte, R-6th. Also on the committee were Reps.  Randy Forbes, R- 4th; and Robert C. Bobby Scott, D-3rd,

Cuccinelli did not read from his prepared remarks during his live testimony before the committee. In his spoken remarks he said that the federal government, not the states, has asked for a dramatic change in the law, through the individual mandate.

He said the issue was "not about health care but about liberty" and said the power exemplified in the authority of the individual mandate could be extended "across the economy and across the lives of our citizens."

Finally Cuccinelli said even the British colonial rulers acknowledged that colonists had the right to not engage in commerce, but now "we have a president and a Congress that thinks they can."

In its suit, the state argued that the individual mandate provision of the law -- which would require, by 2014, nearly every American to purchase health insurance or pay a penalty -- is unconstitutional because it compels people to engage in commerce.

Cuccinelli said Congress exceeded its authority under the Commerce Clause of the Constitution by enacting the law, and asserted that a Virginia law that prohibits residents from being compelled to purchase insurance should prevail.

In December, U.S. District Court Judge Henry E. Hudson ruled in Virginia’s favor. The case is scheduled to be heard by the U.S. Court of Appeals for the Fourth Circuit in May.

But Cuccinelli has petitioned to have the matter skip the Court of Appeals and be heard directly by the U.S. Supreme Court -- a bid that has been opposed by the Department of Justice but endorsed by Gov. Bob McDonnell and 27 other Republican governors in a letter to President Barack Obama.

Cuccinelli told committee members that the use of the Commerce Clause to compel Americans to purchase a good or service -- in this case, the empower the insurance mandate provision -- is “unprecedented.”

He described it in his prepared remarks as “tantamount to a national police power -- that is the power to legislate on matters of health, safety and welfare that was considered part of the reserve powers retained by the states at the time of the founding.”

Cuccinelli said that confronted with the problem posed by the exercise of power, the president and federal government have adopted a “fallback” position, asserting that the mandate was simply an exercise of the taxing power of Congress.

But Cuccinelli said a tax is an enforced contribution to provide for government while a penalty is an “exaction” for an unlawful act, and that the two cannot be interchanged.

Nor, he argued, can the insurance mandate provision be compared to the collection of Social Security taxes, because previous court opinions do not suggest that Congress has the authority to “impose an employment excise tax on workers or are not working.”

Cuccinelli testified that the desire to use the new health care law to fix a “pressing national problem” is not legally insufficient to override its constitutional deficiencies.

The committee was also scheduled to hear testimony from Georgetown University Law Professor Randy Barnett, who believes the new law is unconstitutional, and Duke University School of Law professor Walter Dellinger, who testified before the Senate in opposition to repealing the health care overhaul.

(This has been a breaking news update. Check back for more details as they become available.)