The Man Is Earning His Pay

Attorney General Cuccinelli announces he will seek expedited review of Virginia health care lawsuit in the Supreme Court

RICHMOND (February 3, 2011) – Virginia Attorney General Ken Cuccinelli announced today that Virginia will file a petition to ask the United States Supreme Court to take Virginia’s health care lawsuit now, as opposed to waiting for the case to first be decided by the court of appeals. The Petition for Certiorari Before Judgment in the United States Supreme Court in the case of Commonwealth v. Sebelius will be filed pursuant to Rule 11 of the Rules of the United States Supreme Court.

“Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible,” said Cuccinelli. “Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional. Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone’s best interest.”

Normally, appeals of decisions of United States district courts are first heard in the federal courts of appeals. But Rule 11 provides that an immediate review in the U.S. Supreme Court is permissible “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in” the Supreme Court.

Cuccinelli noted, “Rule 11 is the exception to the general rule, but this case and the other cases challenging the constitutionality of PPACA are truly exceptional in their own right. There are a number of suits pending throughout the country challenging the constitutionality of PPACA. Presently, 28 states have filed suits challenging the authority of Congress to enact this law. That, in and of itself, is exceptional and makes the cases excellent candidates for immediate review in the Supreme Court.

“We did not make this decision lightly. Given his unique responsibilities to fund and implement PPACA as Governor of Virginia, Governor McDonnell is particularly concerned about the possibility of wasting precious and strained taxpayer dollars preparing for a law that may well be struck down. Recognizing the tremendous amount of time and resources that are and will be expended to implement a law that two federal judges have ruled contains unconstitutional provisions, Lieutenant Governor Bolling and Speaker Howell have joined the governor in requesting that my office seek expedited review. Additionally, I have been encouraged to attempt to expedite this case by Democrats as well as Republicans in Virginia's General Assembly, and of course, the bipartisan passage of Virginia's Health Care Freedom Act last year was the very first step in this entire process here in the commonwealth.

“Despite the fact that the Department of Justice has not agreed to join in a Rule 11 motion, in a filing with the U.S. Court of Appeals for the Fourth Circuit to set an expedited schedule for its appeal of Virginia's district court victory, the Justice Department stated, ‘The constitutionality of [PPACA] has public policy implications of the highest magnitude.’ In other words, according to the Justice Department itself, a case cannot have public policy implications that are more important than this case. We agree and feel that reinforces the fitting nature of our request for immediate review in the Supreme Court,” Cuccinelli said.

The Petition for Certiorari and Appendix are currently being assembled by the legal printer for the attorney general and will be filed with the court as soon as is practicable.

"...Consent of the Governed"

Lest We Forget the Past Two Years
by Robert Allen Bonelli

Samuel Adams, writing in a letter to James Warren in February of 1779, said, “If virtue and knowledge are diffused among the people, they will never be enslaved.” Our nation needs to heed these words and continue to remain informed and engaged. The tragedy of the Arizona shootings by a sick human being has provided Mr. Obama and his supporters a wall shielding the past two years of abusing power and ignoring the will of the people. A call for civil discourse is no more than code for “moving on” and not challenging the bad legislation that was forced on the American people by single party rule. The people must recognize this and keep the 112th Congress focused on repealing legislation that threatens our liberty, regardless of how civil the discourse.

Obama Care is more than another expensive entitlement program that will bankrupt our nation and put future generations under heavy financial risk, it changes the fundamental view of the role of government in the lives of the American people. This legislation places the most private aspects of a citizen’s life and liberty into the hands of the government. The over reach of the law is far more that its constitutionally challenging provisions for forced purchases of insurance and potential for rationing, it legislates a dominant position for a central authority over the well- being and eventually the actual existence of the individual.

There was no civil discourse when this law was being debated. Mr. Obama himself, in referring to the outcry of the American people at town hall meetings with their elected representatives during the summer of 2009, said. “The people should just shut up!” Nancy Pelosi, the Democratic Speaker of the House during the debate, proclaimed, “We have to pass the bill to see what’s in it.” The American people were called “Nazis” and “dangerous” and worse. All the American people were doing was simply demanding that their government follow their will. The people were ignored. Now, those who committed the atrocity want us to forget what happened and simply move on all in the name of civil discourse in honor of those slain by a criminally insane individual.

The only way to properly honor the victims of the Arizona shooting is to do what they were doing at the time of that terrible event – engage in the political process and demand that our elected representatives understand what the people want and to legislate based on that understanding.

Repealing Obama Care and replacing it with free market solutions to lowering the costs of health insurance is only one legislative correction necessary. Focusing on the run away authority of unelected agency heads and commission members, as well as the unconstitutional regulations they have been writing for the past two years is also a necessary corrective step for the 112th Congress.

More after the jump

Cronyism, Bambi-Style (Chicago)

ObamaCare Rewards Friends, Punishes Enemies
The administration waives allies through the health law's onerous restrictions.

A primary task for the new Republican House majority is to undo as many of the pernicious effects of ObamaCare that it can. One of these effects is the spectacle of employers going hat-in-hand to the Department of Health and Human Services (HHS) for waivers from some of the law's more onerous provisions.

In September, HHS Secretary Kathleen Sebelius began granting waivers to companies that provided workers "mini-med" coverage—low-cost plans with low annual limits on what the insurance will pay out. This followed announcements by some employers that they would have to drop these plans because they did not meet the new health law's requirement that 85% of premium income be spent on medical expenses.

By early December, HHS had granted 222 such waivers to provide mini-med policies for companies including AMF Bowling and Universal Forest Product, as well as 43 union organizations. According to the department's website, the waivers cover 1,507,418 employees, of which more than a third (525,898) are union members. Yet unionized workers make up only 7% of the private work force. Whatever is going on here, a disproportionately high number of waivers are being granted to administration allies.

If this healthcare bill is so damn good, why is the administration granting waivers? Why does it exempt Congress?

Snake in the yard, folks. Get the hoe. Time to kill it once and for all.

Follow-up From Our AG on Healthcare Ruling

Our Attorney General ROCKS THE HOUSE!!!!!!

Dear Defender of Liberty,

As I told you earlier today, Virginia won the first round of the constitutional fight over the federal health care law. I also told you I'd get back to you with more details later in the day, and I'm keeping my promise.

I will tell you up front that I will also go into still more detail later this week - when time allows.


Arguments and Outcomes

There were two basic arguments in this case.

First, Virginia argued that the individual mandate was beyond the power of Congress and the President to impose under the Constitution. Specifically, Congress claimed that their regulatory power under the Commerce Clause allowed them to order you to buy their government-approved health insurance, even if you decide not to buy health insurance.

The judge ruled that the federal government does not have the power to compel you to buy health insurance as part of its attempt to regulate the entire field of health care and health insurance. Thus, Virginia won this argument.

Second, the federal government advanced a 'fallback' argument in case it lost on its commerce clause argument. The feds' fallback argument was that the financial penalty you have to pay if you don't buy the government mandated health insurance is a tax.

This may sound like an odd argument from a political standpoint - usually they say everything is NOT a tax (in fact, they argued the penalty was not a tax while they were trying to get the bill passed); however, they changed position after the bill became law to try and save the bill. What they were trying to do was to get the courts to agree that because the penalty would presumably raise some revenue, it was therefore a 'tax' under the taxing and spending for the General Welfare Clause of the Constitution.

No judge in the country has bought this argument, and Judge Hudson was no exception. He ruled that the taxing power of Congress does not save the bill, because the penalty for not buying the mandated health insurance is not a tax.

The federal government only had to win on either of these two arguments, while Virginia needed to win both to prevail, and we won both!

What's Next?

Certainly the federal government will appeal their loss in the district court to the 4th circuit court of appeals within the next 30 days. And whichever side loses in the 4th circuit will certainly appeal to the Supreme Court. And no one has any serious doubts that ultimately the constitutionality of the individual mandate will be decided by the U.S. Supreme Court.

That could take approximately (very rough approximation) two years. We are discussing with the Department of Justice accelerating the case, and those discussions have been very cordial thus far. More on that later.


Conclusion

Today is a great day for the Constitution. Today the Constitution has been protected from the federal government, and remember, an important reason for the constitution in the first place was to limit the power of the federal government.

Today is also a day of a small degree of vindication. When we first filed suit, the screeching of the liberals was deafening. Everything from accusing us of playing politics instead of practicing law, to filing what they called a 'frivolous' lawsuit.

I want you to know, that our team makes decisions based on the Constitution and the laws. Period. We deal with the consequences of our decisions separately, but first and foremost we have been and will continue to be true to the Constitution and laws of the United States and Virginia, regardless of whether it's easy or hard in any particular case.

Thank you for your continuing support!