Why high-speed lawyering can be hazardous to your health.
Virginia's attorney general, Ken Cuccinelli II, is a man in a big, big hurry. He had promised to challenge the constitutionality of the newly enacted health care legislation "as soon as the ink is dry" on the president's signature. And—true to his word—less than five minutes after the bill was signed this week, Cuccinelli's staff sprinted over to Richmond's federal courthouse with a lawsuit aimed at blocking the measure. While 13 other state attorneys general hoofed it to court to file a joint lawsuit in Florida, Cuccinelli opted to go his own way, filing his own suit tethered to a brand-new Virginia law providing that "no resident of this Commonwealth … shall be required to obtain or maintain" an insurance policy.
In his nine-page complaint, Cuccinelli does acknowledge that the individual insurance mandate to which he objects doesn't even kick in until 2014. (Many legal scholars don't believe challenges can even be filed before that time.) And Cuccinelli, in the manner of Speedy Gonzales, further cops to the fact that his primary objection to the law has not yet been adjudicated. His claim is that a federal statute is stepping all over a new Virginia law. But he knows he can't readily overcome the U.S. Constitution's supremacy clause, which expressly states that federal law shall be the "supreme Law of the Land." Yet Cuccinelli maintains that the Virginia statute doesn't have any problems with the supremacy clause, because the whole health care reform statute is unconstitutional. Isn't that what he's asking a court to determine in the first place?
As the various state challenges to the president's health care law have been filed, legal scholars and court watchers have buzzed across the blogosphere with predictions of their success. The suit filed by the other 13 attorneys general makes a different argument from Cuccinelli's—taking aim at the government's insurance mandate and taxation authority and the expansion of Medicaid. Most legal experts agree that even these arguments are unlikely to prevail, and some of the more candid supporters of the lawsuits concede that courts might just be open to these type of long-shot arguments. Given the relative novelty of the individual mandate, and the fact that the current Supreme Court is as conservative as it's been in nearly a century, the arguments are not completely hopeless. Whether the lack of utter hopelessness is a sound basis for launching a raft of major lawsuits is a matter for the attorneys general to sort out on their own.
Virginia's Cuccinelli's legal claim, however, has come in for some extra-special scorn from legal scholars on both the right and the left. In a conference call with reporters this week, Erwin Chemerinsky—dean of the UC-Irvine School of Law—reiterated that as with the battle over desegregation in the '50s and '60s, "states can't just block the implementation of federal laws." Doug Kendall, founder of the Constitutional Accountability Center, says that of the two suits, "the Virginia law suit is even more problematic because the Virginia statute at the center of their suit is a ham-fisted attempt at nullification." Washington and Lee law professor Tim Jost doesn't even believe the attorneys general have standing to bring suit. Not to mention that conservatives ranging from President Reagan's solicitor general, Charles Fried, to former federal appeals court judge Michael McConnell have blasted state laws that attempt to opt out of the health-reform law as legally "meaningless," "preposterous," and "absurd." As Fried told NPR's Nina Totenberg this week, it was earlier attempts at "so-called nullification" that led to the Civil War.
So what do we make of Ken Cuccinelli, who assumed office just a few short weeks ago and has charmed the cable-news shows with his quick-draw legal papers full of zingy legal references to things like the "failed Clinton administration health care proposal"? Cuccinelli has already enraged some Virginians by filing a lawsuit asking the EPA to reconsider regulating emissions. He also bolstered his image as the lawyer with the itchiest trigger finger in America by writing a letter directing all Virginia universities to remove language related to sexual orientation from their anti-discrimination policies. Following a massive campus backlash, Gov. Bob McDonnell issued a nonbiding "executive directive" to the state workforce reminding them that discriminating based on sexual orientation could get you fired. Cuccinelli either embarrassed his boss into offering a full-throated defense of gay rights in Virginia or is positioning himself as the wacky Tea Party foil to the governor's kinder, gentler conservative.
Cuccinelli's rocketing journey to the heart of the cable-news universe has been achieved with multiple acts of what can only be described as purely aspirational lawyering. Just as he wishes climate science to be untrue, he crosses his fingers and dreams that a state nullification statute will undo a federal law. It's bad enough when TV pundits proclaim that what case law and the Constitution say doesn't matter; the only important thing is what the public wants. But when attorneys general start to offer up such arguments in legal pleadings, it transcends legal activism and starts to look like pure ideological yearning. And that's a particularly cynical enterprise for someone who preaches fidelity to the law and constitution as written.
Ken Cuccinelli was very clearly born to run. But he's probably doomed to be confounded by legal processes that look backward instead of forward—and move glacially even when they're tripping along at high speeds. There is a good reason the legal system rarely rewards the fleetest or the most ambitious. The prospect of Lady Justice blindfolded and on roller skates is simply too terrifying to contemplate.
A version of this article appears in this week's Newsweek.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Ken Cuccinelli by Mark Wilson/Getty Images.