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Court hears arguments in AG challenge to health-care reform

A federal judge heard arguments for the state and for the federal government in a case brought by Virginia Attorney General Ken Cuccinelli challenging the constitutionality of the federal health-care reform bill passed and signed into law earlier this year.

Judge Henry E. Hudson said in Monday’s hearing in Richmond that he will hand down a ruling in the case before the end of the year, while acknowledging that the case would likely be headed to the United States Supreme Court.

Cuccinelli, a Republican, is challenging the law on grounds that the reform passed by the Democratic-majority Congress and signed into law by President Barack Obama, also a Democrat, “goes beyond the power that the government has under the Commerce Clause,” he told reporters at a news conference Monday afternoon.

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Sidebar: AG discusses health-care suit

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“The individual insurance mandate represents an unprecedented and unconstitutional exercise of federal power because it penalizes Americans for not engaging in commerce. … The government is attempting to stretch the Constitution’s Commerce Clause to allow it to regulate inactivity, something that it has never done before,” Cuccinelli said.

Deputy U.S. Assistant Attorney General Ian H. Gershengorn, arguing in court today on behalf of the federal government, said “the appearance of inactivity is just an illusion” because individuals are consumers of health-care services when they are sick or injured.

“The decision to get or not get insurance and essentially gamble that other people will pay for you when you get sick is not inactivity. It is not passivity,” Gershengorn said.

Cuccinelli seemed to nod to what his critics think is his real motivation for pursuing the suit, offering in his press conference a lengthy and sometimes rambling discourse on the American Revolution and the drafting of the Constitution.

“This case is ultimately not about health insurance or health care. This case is about protecting liberty. It is about the outer reach of federal power. Virginia is attempting the put the federal government back inside the constitutional fence that the Founding Fathers put in place to contain its power. This case is about the states providing a check and a balance to the federal government in our federalist system. Because the federal government is exceeding the power that we, the people, gave it through the Constitution,” Cuccinelli said.

“If Virginia loses this fight, and the federal government is allowed to cross this line, Congress will be granted virtually an unlimited power to order you to buy anything. That’s not rhetoric; that’s reality of the circumstances of this case,” Cuccinelli said.

Story by Chris Graham. Chris can be reached at