First Battle Over Obamacare Begins

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Published June 01, 2010

| FoxNews.com

And so it begins.

There are about a half-dozen constitutional lawsuits underway already against parts of President Obama’s health care law. Most eyes are on the multistate case filed in Florida, joined by 20 states across America.But a parallel suit is progressing in the Old Dominion, in the Commonwealth of Virginia. Attorney General Ken Cuccinelli filed that suit on the same day that Obamacare was signed into law in March.

There are several distinctive points in the Virginia suit. First, it was filed in the U.S. District Court for the Eastern District of Virginia. That’s important because it’s the “rocket docket” — the fastest-paced federal trial court in the country. Litigation at the trial level can go on for multiple years. Even in a case like this, this could unfold in a way that it takes a year before a case goes to trial, or is decided on what we call “summary judgment.”

But in the rocket docket, it’s quite possible that this case could go to summary judgment in another six months. That’s important for all those seeking to get Obamacare before the Supreme Court in time for the 2012 elections.

Another important point is that the Virginia suit is raising the “severability” issue. It’s not an exaggeration to say that the future of American health care may well turn on severability.

Almost all legislation has a severability clause. That’s routine language — almost boilerplate — that says if any one part of this law is found unconstitutional, or otherwise invalid or unenforceable, then the remainder of the law will continue in full force and effect.

You’re likely to find a severability clause if you look around your home. If you have a lease, or an employment contract, or service agreement, or even a product warranty, you’re likely to find some sort of severability clause toward the end of it.

Obamacare has no severability clause. That means is that if any one part of Obamacare is found unconstitutional, then the entire law might be thrown out in court by a single decision. It doesn’t mean that it would definitely happen, but it might.

This lack of severability could be the silver bullet that destroys the entire Obamacare system. Otherwise, striking down any one part of it could just open the door to a dozen more lawsuits, some of which the Obama administration would win. And various parts of the law may get entrenched support over time, making them hard to modify or replace.

The complaint filed by Attorney General Cuccinelli raises two issues. The first is that the individual mandate that requires American citizens to buy insurance is unconstitutional. The second is the severability issue, which could possibly throw out the whole statute.

Not wanting to take that chance, the administration has filed a motion to dismiss, asking the federal court to throw out the lawsuit without considering the merits.

To be fair, motions to dismiss are routinely filed whenever the lawyer for the party being sued can think of a reason to do so. Federal law and Supreme Court precedent set forth many such reasons, and the administration is claiming that two of those reasons are in play with the Virginia case.

We’re in something of uncharted waters with the Virginia case, and it remains to be seen which way this motion to dismiss will go.

Unlike the big multistate case, where several co-plaintiffs are private individuals lacking insurance who would be subject to the mandate, the Virginia suit only names one plaintiff, Virginia, and one defendant, HHS Secretary Kathleen Sebelius.

So the heart of the administration’s argument for dismissal is that Virginia lacks standing to bring the suit. Article III of the Constitution requires that a plaintiff have standing to sue in federal court. To have standing, a plaintiff must allege a concrete, personal injury that is different from the public at large, that a court can redress if it grants the relief that the plaintiff is seeking.

Here, Virginia’s legislature passed a law empowering and charging the attorney general to bring suit on behalf of all the citizens of Virginia that would be under the hammer of the individual mandate. Cuccinelli filed suit in accordance with that law.

There is no Supreme Court precedent that clearly states whether such facts can create standing. The motion to dismiss makes the argument against it, and now Cuccinelli will argue why Virginia does have standing. The district court will likely decide on the motion in the next couple months.

So this will be the first legal battle in Obamacare, and one that will move forward much more quickly than the constitutional fight. The first battle in what will be a long war.


Ken Klukowski is a senior legal analyst with the American Civil Rights Union and coauthor of the new book The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency. He is a frequent Fox News contributor.

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http://www.foxnews.com/opinion/2010/06/01/ken-klukowski-obamacare-severability/