Barbara Hollingsworth: Virginia's Cuccinelli wins first round on Obamacare 

On the job less than a year, Virginia Attorney General Ken Cuccinelli has already poked a stick into several legal hornets' nests.

He's taken on the University of Virginia, his alma mater, for refusing to hand over the e-mails of Climategate figure Michael Mann. He filed an amicus brief in support of Arizona's immigration law, and he sought judicial review of the Environmental Protection Agency's new carbon regulations.

Cuccinelli was also the first state attorney general to challenge the constitutionality of Obamacare, and he just won the first round.

Ever since he won a state Senate seat in Fairfax County in a 2002 special election by 98 votes out of more than 37,000 cast, the conservative lawyer has consistently defied conventional political wisdom. He did so again in November when, heavily targeted by Democrats, he handily beat Del. Steve Shannon, a former prosecutor, for the AG post.

Cuccinelli became a national figure when he audaciously filed a lawsuit challenging Obamacare on the same day President Obama signed the landmark legislation into law. Since then, 33 states have followed his lead. In the first -- and arguably most important -- legal hurdle, Cuccinelli convinced U.S. District Judge Henry Hudson to allow his lawsuit to go forward.

"No one here expected to win this one," sniffed an unnamed White House aide quoted by Politico. A Justice Department spokesperson also dismissed the 32-page ruling as "a merely procedural decision."

Don't they wish. Cuccinelli scored a major tactical advantage when Judge Hudson ruled that Obamacare -- which, he noted, "radically changes the landscape of health insurance coverage in America" -- should be open to a level of scrutiny absent during the legislative process.

As you may recall, the bill was written -- and amended -- by congressional Democrats almost entirely behind closed doors, prompting House Speaker Nancy Pelosi's now famous remark that "We need to pass the health care bill to find out what's in it."

The crux of Cuccinelli's argument is that the federal government has no authority under the Constitution's Commerce Clause to force a Virginia resident to engage in commerce against his or her will.

As Judge Hudson pointed out in his Aug. 2 ruling, there is no legal precedent that allows the federal government to force someone to purchase health insurance, particularly when doing so is in "direct conflict" with state law.

"Neither the U.S. Supreme Court nor any circuit of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce."

Hudson's ruling was much more than merely procedural. By spotlighting Obamacare's total lack of legal precedent, the judge set a high bar for federal attorneys. His ruling that Cuccinelli's suit has "legal sufficiency" to proceed raised the bar even higher.

The same point was made by the National Federation of Independent Business and 20 other states in their response to the government's motion to dismiss a similar lawsuit against Obamacare:

"No court ever has upheld so sweeping an assertion of federal power. To do so would arm Congress with top-down authority to dictate virtually every aspect of persons' lives, as consumers and producers, and would transform our federal government from one of limited, enumerated powers into one of limitless authority over states and their citizens. This cannot be constitutional."

Cuccinelli was the first one to force the White House to defend Obamacare's absurd premises in court. He could have the last word as well.

Barbara F. Hollingsworth is The Examiner's local opinion editor.

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