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Virginia AG Cuccinelli Upbeat After Health Care Hearing

March 29, 2012

Virginia’s attorney general was in an upbeat mood Tuesday after listening to the U.S. Supreme Court’s arguments on the key provision in President Barack Obama’s health care overhaul — a requirement that most Americans buy health insurance or pay a penalty.

Kenneth Cuccinelli. Photo credit: Office of the Attorney General

Republican Attorney General Kenneth Cuccinelli believes the “individual mandate” is unconstitutional — a view shared by the 26 states challenging the law in the Supreme Court, which is hearing the case over three days this week.

Cuccinelli filed a separate lawsuit against the law, but a federal judge’s ruling in his favor was overturned by a three-judge panel of the 4th U.S. Circuit Court of Appeals. The appeals court’s ruling that Virginia lacked legal standing to challenge the law relegated Cuccinelli to the role of keenly interested observer in the historic arguments before the Supreme Court.

“I went in cautiously optimistic about our prospects on the individual mandate, and I came out happier than when I went in,” Cuccinelli told reporters in a teleconference after Tuesday’s two-hour hearing.

Much of the reason for Cuccinelli’s optimism was the questioning by two justices whose votes are viewed as pivotal: Justice Anthony Kennedy and Chief Justice John Roberts. The remainder of the court appears to be split 4-3 in favor of the law that the Democratic president signed two years ago.

Cuccinelli noted that near the end of the hearing, Kennedy suggested that if the insurance mandate is upheld it would fundamentally change the relationship between government and its citizens. He added that Roberts made some points that seemed to contradict the government attorney’s arguments supporting the mandate.

“The limited government side had a very good day today,” Cuccinelli said.

Cuccinelli said lawyers on both sides were vigorously questioned by the justices. Justice Clarence Thomas, who rarely asks questions, remained silent but was obviously attentive, the attorney general said.

“All in all it was a rather amazing day,” he said. “It was like being in a brain candy store, being in that courtroom.”

The justices heard arguments Monday on whether the legal challenge is premature under the Anti-Injunction Act, which bars lawsuits against a tax until after the tax is paid. In separate sessions Wednesday, the court will focus on whether the rest of the law can remain in place if the insurance mandate falls, and whether Congress lacked the power to expand the Medicaid program to cover 15 million low-income people who currently earn too much to qualify.

A decision is expected by late June.

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