Attempts to dismiss Virginia's lawsuit against the health care reform law were filed this week by federal attorneys on behalf of Department of Health and Human Services Secretary Kathleen Sebelius in a 39-page brief.

"Virginia seeks here to challenge recently enacted federal health care reform legislation," the attorneys wrote. "To accept that challenge, this court would have to make new law and ignore decades of settled precedent."

The state of Virginia, in a preemptive strike against the law, enacted the Virginia Health Care Freedom Act, stating that the government can't force Virginians to buy health insurance.
Virginia Attorney General Kenneth T. Cuccinelli II filed the lawsuit in March, after President Barack Obama signed the Patient Protection and Affordable Care Act, declaring that state's law is constitutional and Congress does not have the right to impose the individual health care mandate.

"The Commonwealth [of Virginia] asserts it has standing to vindicate a sovereign interest in its new statute purporting to exempt Virginians from any federal requirement to purchase health insurance," the attorneys wrote. "A state cannot, however, manufacture its own standing to challenge a federal law by the simple expedient of passing a statute purporting to nullify it. Otherwise, a state could import almost any political or policy dispute into federal court by enacting its side of the argument into state law."

The lawyers also pointed out that Congress is well within its right, under the Commerce Clause, which gives Congress very broad power to regulate commerce.

"The federal government is forcing citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce via the Constitution's Commerce Clause," Cuccinelli said in a statement. "We contend that if a person decides not to buy health insurance, that person - by definition - is not engaging in commerce, and should not be subject to a federal mandate."

"Just being alive is not interstate commerce," he argued. "If it were, there would be no limit to the Commerce Clause and to Congress's authority to regulate everything we do. If Congress has the power to force Americans to buy health insurance, then there's nothing to stop Congress from forcing us to buy any product."

Virginia has until June 7 to respond to the brief, which Cuccinelli said is "pretty close to what we expected," in terms of its contents. The government then has until June 22 to reply to Virginia's response.

Virginia's lawsuit is a separate matter from the lawsuit backed by 20 states, which calls the health care law unconstitutional.

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