Why Virginia is Suing The Federal Government Over The New Health Care Law

By Attorney General Ken Cucinelli

Virginia has received a great deal of national attention recently for passing a law that protects its citizens from government mandates to buy health insurance.  Virginia has also received attention for suing the federal government over the newly passed federal health care act, which directly conflicts with the Commonwealth’s new law.

Many citizens have asked how the Attorney General can sue over this conflict when the U.S. Constitution’s Supremacy Clause usually allows federal law to trump state law.  Others have asked, if the government mandates that we buy auto insurance, why can’t it mandate that we buy health insurance?

The answer to the first question is that if a federal law is proved unconstitutional while a conflicting state law is constitutional, the state law will prevail.  We in the Attorney General’s office feel that the new federal individual mandate – the requirement that everyone be forced to buy government-approved health insurance by 2014 or face fines – is unconstitutional.

It is unconstitutional because the federal government is claiming that the source of its power for imposing the mandate is the Constitution’s Commerce Clause, which gives the federal government the power to "regulate commerce among the several states…"  We argue that if someone isn't buying insurance, then – by definition – he is not participating in commerce.  How, then, can the government use the Commerce Clause to regulate non-commerce, ie. regulating inactivity?  Read the entire article...