Ken Cuccinelli

  • September 8, 2011

    by Jeremy Leaming

    A federal appeals court earlier today rejected two legal challenges, on procedural grounds, to the Obama administration’s landmark health care reform law, the Affordable Care Act.

    On the day President Obama signed the measure into law, Virginia Attorney General Ken Cuccinelli, supported by an array of right-wing groups, lodged a lawsuit arguing that the law’s individual responsibility provision, which requires individuals, starting in 2014, to maintain health care insurance coverage, amounted to an unconstitutional use of congressional power.

    A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today tossed aside Cuccinelli’s law suit, saying the state lacked standing to bring the complaint.

    “Standing here turns on whether Virginia has suffered the necessary ‘injury in fact,’” wrote Circuit Judge Diana Gribbon Motz for the panel in Virginia v. Sebelius. “To satisfy that requirement, Virginia must demonstrate that the individual mandate in the Affordable Care Act ‘inva[des]’ its ‘legally protected interest,’ in a manner that is both ‘concrete and particularized’ and ‘actual and imminent.’”

    In this case, Cuccinelli argued that the individual responsibility provision of the ACA conflicts with the “Virginia Health Care Freedom Act,” hindering the state’s “sovereign power.”

    But Judge Motz concluded that the ACA’s individual responsibility provision “threatens no interest in the ‘enforceability’” of the Virginia health care law.

    “Contrary to Virginia’s arguments, the mere existence of a state law like the VHCFA does not license a state to mount a judicial challenge to any federal statute with which the state law assertedly conflicts,” Motz wrote. “Rather, only when a federal law interferes with a state’s exercise of its sovereign ‘power to create and enforce a legal code’ does it inflict on the state the requisite injury-in-fact.”  

    Here, Virginia’s health care law, Motz, wrote “regulates nothing and provides for the administration of no state program. Instead, it simply purports to immunize Virginia citizens from federal law. In doing so, the VHCFA reflects no exercise of ‘sovereign power,’ for Virginia lacks the sovereign authority to nullify federal law.”

    Motz said Virginia’s real interest was not in enforcing a state law, but rather in exempting Virginians from a federal law.  

    The Fourth Circuit also rejected, on procedural grounds, a lawsuit brought by the late televangelist Jerry Falwell’s Liberty University arguing that several provisions of the ACA are unconstitutional. Judge Andre Davis lodged a dissent, however, arguing that the court should have ruled on the constitutionality of the ACA.

  • October 29, 2010
    Guest Post

    By Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School
    Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California's same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief's lead counsel is Virginia attorney general Ken Cuccinelli (pictured), a darling of social conservatives and the Tea Party movement.

    The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I'll explain, these attorneys general -- call them the Cuccinelli 13 -- don't really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

    As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it's a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

    What's interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

    Taking aim at the judge who invalidated California's Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court's "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13's real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas - what the AGs call "the acquired cultural wisdom of citizens" - about marriage.