Promoting innovation, reform, and unity in Virginia by shining

a spotlight on the business leaders, activists,


and ideas taking us ahead.

Rule of Law “Standing” Strong: AG Embarrassed on Health Care

By Mike Signer | September 8, 2011 | No Comments

There was a resounding defeat for Attorney General Cuccinelli today by the Fourth Circuit, ruling clearly that Virginia did not have what the courts call “standing” to sue to defeat the Affordable Care Act (President Obama’s new health care system).  We called this issue here on NDP last March, citing to a terrific law review by Professor Kevin Walsh at the University of Richmond.  I wrote:

To properly hear a case, a court must have what’s called “subject matter jurisdiction.” This is because all courts can’t be all things to all people. Federal courts, for instance, generally hear cases related to federal law, while local and state courts generally hear cases related to local and state law. Just as you wouldn’t expect a federal judge to hear your traffic ticket, you wouldn’t expect a Virginia circuit court judge to hear your bankruptcy claim.

This is where it gets problematic for Cuccinelli’s lawsuit against ACA. The AG’s lawsuit claims that the new law exceeds the narrow parameters set out for federal law by the Commerce Clause of the Constitution, impermissibly forcing Virginians to have health insurance. It does this by resting its argument on the so-called Health Care Freedom Act that the Republican-led General Assembly passed a year ago, declaring the individual mandate illegal in Virginia.

In other words, the AG’s suit requires the federal court to find a state law valid, as the means for declaring the federal law invalid.  As Walsh explains, “The premise of Virginia’s claim of standing to attack the individual mandate in federal court was the asserted need to defend the Virginia Health Care Freedom Act.”

The legal doctrine of standing matters for precisely the reasons it was applied in this case.  In a constitutional republic like ours, the courts are designed to resolve grievances between parties.  Far better to have a judge and jury rule on a conflict than a sheriff (as in the Wild West) or a military tribunal (as in many other countries, even today).  But courts can’t resolve all conflicts.  They should only resolve properly framed, legally-driven complaints.  Thus doctrines like standing and subject matter jurisdiction.

That’s what happened in this case.  The Attorney General’s decision to pursue this case — to use his own position as elected attorney general of a state to sue to stop a federal law — was manifestly a political and ideological decision, not a legal one.  He tried to say that a law that Virginia passed against the Affordable Care Act gave Virginia standing to fight a federal law — but this was too clever by half.  It was a transparent ploy to insert Virginia into the legal process.  Conservatives are fond of arguing against the use of courts to litigate policy; yet in this case, this was precisely the attempt.

In its decision, the Fourth Circuit states that the standing doctrine was designed to maintain the “Constitution’s democratic character” and strengthen public confidence in the judiciary; standing up for the doctrine will “prevent federal courts from transgressing this constitutional limit.”

That the Fourth Circuit so clearly recognized such a transgression in the Attorney General’s lawsuit is pretty embarrassing for the Attorney General, and shines a bright light on the questionable use of state power we’ve seen from this particular office in Richmond.

Bookmark and Share

Leave a Reply

Your email address will not be published. Required fields are marked *


You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>