Virginia Attorney General Ken Cuccinelli warned Tuesday that Obamacare would lead to "an elimination of federalism as we've known it for 220 years in this country."
Speaking on Fox News host Megyn Kelly's America Live program, Cuccinelli said the Obama administration is interpreting its authority to regulate commerce so broadly that it wants to exercise its power even where no commerce is taking place — by penalizing people who opt not to purchase health insurance coverage.
"They are trying to treat doing nothing as economic activity," Cuccinelli said. "That's never, ever been done before."
A federal district court judge Tuesday denied the government's motion to toss out Virginia's lawsuit against the president's healthcare reforms.
Cuccinelli and about 20 other state attorneys general have challenged the legislation on the grounds that the federal government lacks the constitutional authority to require citizens to buy a product or service.
Judge Henry Hudson's 32-page opinion denying the administration's request appears to agree with Cuccinelli's view that the individual mandate marks a drastic shift in the federal government's relationship to the states.
"Unquestionably, this regulation radically changes the landscape of health insurance coverage in America," the judge wrote.
No appellate court has ever “squarely addressed” the federal government's authority to require its citizens to make a specific purchase, Hudson wrote.
In ruling that the trial would move forward, Hudson was not ruling on the case itself. Rather, he was rejecting the administration's arguments that the case should be dismissed out of hand before being heard.
“While this case raises a host of complex constitutional issues," Hudson wrote in his opinion, "all seem to distill to the single question of whether nor not Congress has the power to regulate — and tax — a citizen’s decision to not participate in interstate commerce."
Some constitutional scholars have said the individual mandate represents a vast expansion of the federal government's authority over the citizens it is supposed to serve.
At a California town hall meeting in June, for example, one of Rep. Pete Stark’s constituents asked him: "If this legislation is constitutional, what limitations are there on the federal government's ability to tell us how to run our private lives? . . . If they can do this, what can't they?"
Democrat Stark's bracing answer: "The federal government can, yes, do most anything in this country."
That response may help explain why Cuccinelli insists the lawsuit is about liberty rather than healthcare. A legal victory limiting the federal authority to mandate transactions would prevent a government requirement that citizens purchase any other product as well, he says.
Cuccinelli expects the court to rule on the case in November. Asked what will happen to Obamacare if the states win their lawsuits, Cuccinelli implied it would mark the death knell of the administration's healthcare reforms.
"If the individual mandate is found to be unconstitutional, as Virginia says it is, the whole bill falls," Cuccinelli told Kelly. "The whole thing."
That's because Obamacare was written without a severability clause, which would allow for legislation to remain in effect even if the courts invalidate one part of the law.
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