Since the infamous healthcare overhaul law passed earlier this year, there has been a stream of lawsuits contending that this law is unconstitutional. Virginia was one of the first states to demand the overturning of the healthcare law in a suit lead by Virginia Attorney General Ken Ciccunelli. Meanwhile, the Obama administration has asked a federal judge to dismiss this challenge, maintaining that the state has no standing to sue because it is within Congress' power to regulate interstate trade.
Separate from a broader coalition of 20 states against the law,
Ken Cuccinelli filed suit on his own, stating that Virginia was uniquely positioned to challenge the new law because of an existing state law, adopted this year, stating that individuals could not be forced to buy health insurance in Virginia. Cuccinelli conceded that federal laws generally trump state laws, but he claimed a "duty" to file suit because of the conflict between the federal law and Virginia's state law.
Additionally, 13 other states are suing the Federal Government in an attempt to overthrow the new healthcare law, arguing that, "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.?
One of the issues this debate centers over is who has the right to make such laws. Does the mandate for health insurance fit within Congress' powers? There is a commerce clause in Article I, section 8 of the Constitution which says that Congress can regulate economic activity that has a substantial effect on interstate commerce. Congress claims power because they say that people who forgo health insurance can affect interstate commerce when they need medical care and the cost of their care is absorbed by others.
A leading Constitutional Law authority, Erwin Cemerinsky, said, "Underlying this is some notion of a right to not buy health insurance. No such right exists; nor has any right been recognized that is remotely relevant. This is economic activity and since 1937 it has been clear that Congress can regulate economic activity so long as it acts reasonably. Everyone will likely need medical care at some point. Congress can require that all pay for it."
Virginia has maintained that a person who chooses not to buy health insurance is not engaged in commerce. Congress would have power if a person was improperly engaged in buying healthcare, but people who choose to not buy health insurance are abstaining from purchasing a "good" or "service" which is tantamount to not engaging in that commerce. How, then, can Congress try to regulate economic activity that isn't happening?
Federal attorneys then claimed that individuals, not the state, are affected by the healthcare overhaul law's requirement to buy health insurance and thus the state has no standing to sue over this issue. They also argued that the mandate requiring people to have health insurance causes no injury to the state, and that any influence the mandate may have will not take effect until 2016, so the legal challenge has arrived too early.
Attorneys working for Secretary of Health and Human Services Kathleen Sebelius have claimed that Virginia's law was an attempt to nullify a potential future federal statue and did not create the legal conflict necessary to enable the state to sue. Sebelius' attorneys wrote that "If states could manufacture standing in the way Virginia attempts to do here, every policy dispute lost in the legislative arena could be transformed into an issue for decision by the courts."
"If Congress has the power to force Americans to buy health insurance, then there's nothing to stop Congress from forcing us to buy any product," Cuccinelli added.