Why Court Challenges to Health Reform Will Fail

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 less than five minutes after the signing of the bill, Cuccinelli's staff sprinted over to Richmond's federal courthouse with a lawsuit intended to block the measure.

While 13 other state attorneys general also hustled to file a joint lawsuit, in Florida, Cuccinelli opted to file his own suit, tagged to a brand-new Virginia law that provides that "no resident of this Commonwealth … shall be required to obtain or maintain" an insurance policy. In his nine-page complaint, Cuccinelli acknowledges that the federal mandate to which he objects doesn't even kick in until 2014. (Many legal scholars don't believe challenges can be filed before that time.) Speedy Cuccinelli also cops to the fact that his chief objection to the law—that a federal statute is stepping all over a Virginia law—can't readily get past the U.S. Constitution's Supremacy Clause, which expressly states that federal law shall be the "supreme Law of the Land." But Cuccinelli maintains that the Virginia statute doesn't violate the Supremacy Clause because the whole health-reform statute is unconstitutional.

As the state challenges to the president's health-care law have been filed, legal scholars have argued about their probability of success in blogs and on editorial pages. The suit filed by the 13 attorneys general makes a different legal argument from Cuccinelli's and takes aim at the government insurance mandate, taxation authority, and the expansion of Medicaid. Most legal experts agree that these arguments are unlikely to prevail in the courts, and the more candid supporters of the lawsuits acknowledge that they merely hope the courts might be open to 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 aren't all completely hopeless. But "lack of hopelessness" isn't usually the basis for filing major lawsuits.

Cuccinelli's claim, however, is coming in for extra-special scorn from scholars on both the right and the left. In a call with reporters, Erwin Chemerinsky, dean of the UC Irvine School of Law, pointed out that, as with the battle over desegregation in the '50s and '60s, "states can't just block the implementation of federal laws." Washington and Lee law professor Tim Jost doesn't believe the attorneys general even have legal standing to bring the suit. And conservatives ranging from President Reagan's solicitor general Charles Fried to former federal-appeals-court judge Michael McConnell have blasted the new state laws that let states opt out of reform as legally "meaningless," "preposterous," and "absurd." As Fried told NPR's Nina Totenberg last week, earlier attempts at "so-called nullification" led to the Civil War.

So what was Cuccinelli—who assumed office only a few short weeks ago—thinking, with his quick-draw legal papers full of zingy references to "the failed Clinton administration health care proposal"? Cuccinelli has also filed a suit asking the EPA to reconsider regulating emissions. And he bolstered his renegade image—evidently without bothering to clear it with Virginia Gov. Robert McDonnell—by instructing Virginia universities to remove language related to sexual orientation from their anti-discrimination policies. Following a massive campus backlash, McDonnell issued a reminder to the state workforce that anyone who discriminates based on sexual orientation faces termination. Depending on how you look at it, Cuccinelli either embarrassed his boss into offering a nonbinding but full-throated defense of gay rights in Virginia or is positioning himself as the tea-party foil to McDonnell's kinder, gentler conservative.

In just a few short weeks Cuccinelli has turned himself into the hero of conservative cable news shows, but he's done it with what can be described only as acts of purely aspirational lawyering. When TV pundits or politicians argue about what the Constitution should say, it's one thing. But when an attorney general does it, it's another matter entirely. What Cuccinelli is doing transcends legal activism—with which I have no quarrel—and places him squarely in the world of constitutional yearning. That's a particularly cynical enterprise for someone who preaches fidelity to the law and Constitution as they are written. Cuccinelli was born to run. But the glacially slow legal system in this country rarely rewards the fleetest, or most fearless.