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Will VA AG’s Lawsuit Stick? Law Professor Says "No"

March 29, 2010

LEXINGTON, Va. - Before the ink was even dry on President Obama's signature, Virginia Attorney General Ken Cuccinelli made good on his promise that he would sue the federal government if the President signed the health care reform bill into law. The lawsuit claims that Congress does not have the power under the Constitution to require Virginians to purchase health insurance, but law professor Timothy Jost of Washington and Lee University says otherwise.

According to Prof. Jost, under the Constitution, Congress has the right to regulate interstate commerce, and the provisions of the health care measure would qualify.

"So the decision whether or not to purchase insurance, and more particularly the decision when to purchase insurance, is an economic decision, and therefore it is subject to the power of Congress to regulate, and therefore the law is constitutional."

In a written statement, Cuccinelli said that Virginia is now exempt from this federal measure because of a new law in the Commonwealth, which states that Virginia is exempt from a federal mandate.

Prof. Jost however says that the federal law will prevail.

"We made the decision a couple of centuries ago that federal law would prevail over state law. Under the Supremacy Clause, if Congress enacts the law within its jurisdiction, then any state law to the contrary is a nullity, and therefore the Virginia law is a nullity."

The lawsuit was filed March 23 by the Virginia Attorney General's Office against Kathleen Sebelius, Secretary of the Department of Health and Human Services. The federal government has 60 days to file an answer, which will set forth its defense of the constitutionality of the health care reform law.

Monique Coppola, Public News Service - VA