Cuccinelli’s ‘win’ is only procedural

CUCCINELLI’S ‘WIN’ IS ONLY PROCEDURAL…. Virginia’s comically-right-wing state attorney general, Ken Cuccinelli II, filed suit in March, hoping to undermine the Affordable Care Act by claiming that an individual mandate is unconstitutional. Most legal experts, including many conservatives, find the case to be pretty frivolous — a former Bush/Cheney U.S. attorney said the litigation not only lacks merit, but should be “seen as a political exercise” — and Cuccinelli has struggled to explain why this isn’t a waste of taxpayer money.

Obama administration attorneys hoped to bounce the case right out of court before the proceedings could get underway in earnest. In a move that will probably delight the far-right, a district court judge announced this morning that the case can proceed.

A federal judge Monday refused to dismiss a Virginia lawsuit challenging the constitutionality of the federal health-care law, handing the law’s foes their first victory in a courtroom battle likely to last years.

U.S. District Court Judge Henry E. Hudson rejected arguments from Obama administration lawyers that Virginia has no standing to sue over the law and no chance of ultimately prevailing in its constitutional claim.

Before anyone gets too excited about this, it’s a procedural victory, not a measure of success on the merits. The judge didn’t say Cuccinelli’s right; the judge said he’d give Cuccinelli’s argument a full hearing. The issue at hand today was one over “standing” — whether Cuccinelli is in a legally justifiable position to file the lawsuit in the first place, giving the court the jurisdiction to hear the case. The administration hoped to convince Hudson that the Virginia AG hadn’t even met this threshold, but the court disagreed. So, the suit lives to see another day.

Regrettably, Judge Hudson’s objectivity is already in doubt. He’s a Bush/Cheney appointee, and more importantly, the Huffington Post noted that the judge “has financial ties to both the attorney general who is challenging the law and to a powerhouse conservative law firm whose clients include prominent Republican officials and critics of reform.”

Nevertheless, the issue continues to be over the legality of the mandate. Folks who never seemed especially troubled by mandatory auto insurance or mandatory flood insurance in some parts of the country have now concluded that a health care mandate is the most offensive idea they’ve ever heard. It’s the basis of GOP litigation, and ballot measures at the state level touted by right-wing activists.

It’s worth taking a moment, then, to remember a couple of things. First, the concept of an individual mandate as part of health care reform was, in fact, a Republican idea. Indeed, leading GOP senators were on board with the mandate as recently as a year ago. It’s a detail that seems to be easily forgotten by those who hope you’re not paying attention.

Second, note why the mandate exists. If a policy bans discrimination on those with pre-existing conditions, it must also include an individual mandate. It’s not that complicated — if those with pre-existing conditions are to be protected, the mandate is necessary to keep costs from spiraling and to prevent the “free rider” problem.

Of course, if there’s an individual mandate, then it’s also necessary to include subsidies to those who otherwise couldn’t afford coverage. And once you put this string together — protections for those with pre-existing conditions … which requires a mandate … which requires subsidies — what you’re left with is the Affordable Care Act.

But let’s say the Republican crusade against their own idea is successful. It probably won’t be, but let’s just say it is. Here’s the question for the GOP: how are you going to clean up the mess? The mandate brings everyone into the system and keeps costs down. If the right scraps the mandate, the new health care law will still exist; it’ll just be more expensive.

Is this the Republican plan, or have they just not thought this through?