A Libertarian’s perspective on Ken Cuccinelli

Every election, philosophical libertarians are faced with a conundrum: should we vote for principle/stay home or vote for the lesser of two evils.  Democrats tend to be better on personal liberty issues and Republicans tend to be better on economic liberty issues.  Occasionally you find the odd “moderate” that seems to be bad on both sets of issues.  At least then we have something to vote against.

I am supporting Ken Cuccinelli for Governor in 2013.  I found this decision easy, but my hope is that philosophical libertarians will take a strong look at Cuccinelli.

The source

I worked for Ken Cuccinelli as an attorney for the first four years of my career up until he took office as Attorney General.  During that time I was exposed to many aspects of his life: his law career, political actions, and his family.  I have had uncountable private conversations with Cuccinelli about his beliefs and actions.  

What follows is my take on his beliefs vis-a-vis libertarianism.  Unless I attribute the statement directly to him, it is merely my understanding.  I will point out a few tidbits that he has not hidden, but are not known in a widespread fashion.

Principled stand on the Second Amendment

Most people know that Ken Cuccinelli is a strong supporter of the Second Amendment.  What most people do not know is that support for gun control polled well above 50% in his Senate district, and he knew it was the case.  In three elections there he did not waiver in his support of the Second Amendment despite knowing it was a dangerous position to take politically.  He was repeatedly elected on principle and stuck to those principles.  Libertarians tend to worry that Democrats and Republicans will abandon their libertarian leaning principles upon election.  Cuccinelli does not.

Opponent of the overreach of police powers

Whether it is search and seizure, the rights of the accused, or dare I say, the death penalty, Cuccinelli repeatedly falls on the side civil liberties.  Cuccinelli was constantly seeking to reduce the ability of localities to spy on citizens, whether it be through warrantless searches or traffic cameras.  He supported restoration of voting rights to released felons.  He knows all too well that our criminal justice system, despite its general effectiveness and a great many honorable public servants, sometimes falls short of doing justice.  Cuccinelli personally took up the cause of the 27 year wrongfully imprisoned Thomas Haynesworth.  To the press and to casual observers this appeared to be an aberration.  To those of us who knew Cuccinelli, none of this surprised us.  This is one of the reasons why Cuccinelli has such a dedicated base of followers.

Defender of the First Amendment

Ken Cuccinelli was lead counsel on a major case seeking to invalidate a law passed by the General Assembly that restricted the free association of political parties.  This lawsuit originally entitled Miller v. Brown, successfully invalidated a restriction on how political parties can nominate candidates.

Cuccinelli’s religious beliefs

Cuccinelli takes a lot of flak for his stances on abortion and gay marriage.  Cuccinelli believes that life begins at conception and deserves protection in the womb.  He does not want to prevent access to contraception, but he does not consider abortion, chemical or surgical, to be “contraception.”  This is identical to the position of Ron Paul, a supporter of Cuccinelli.  Ron Paul reached his conclusions, in part, from being a practicing obstetrician.  Cuccinelli does not take this position lightly.

Cuccinelli is opposed to state sponsored gay marriage.  He does not believe in “criminalizing blow jobs.” It would take 500-1000 words, perhaps more, to explain the appeal of the ruling invalidating Virginia’s anti sodomy law.  In short, the Attorney General’s brief submitted to the 4th Circuit en banc, and the Supreme Court both fully acknowledged in writing that the law cannot constitutionally ban sexual activity between consenting adults.  It is my strong belief that the tide of public opinion and the court system will overtake his positions in the next 5-10 years.

If your feelings on one or both of these issues control your vote, please vote your conscience, just please remember not to let the perfect be the enemy of the good.

The final take

Cuccinelli, in the end, believes that the greatest minority is the individual and the protection of individual liberties is the primary purpose of government.  Civil liberties, economic liberties, and constitutional freedom are the baseline for Cuccinelli.  In the end, Cuccinelli is the strongest pro-liberty candidate to run statewide in Virginia with a reasonable chance of winning in modern history.  He is not the lesser of two evils, he is a good that is worthy of your consideration. 

Please get out and vote on Tuesday November 5, and no matter your take on Cuccinelli I look forward to working with all liberty minded individuals in the future.

Gay Marriage lawsuit filed in Virginia; Cuccinelli will have to defend Virginia Constitution in the middle of election season

As I pointed out on July 9, Virginia, as one of only two states with gubernatorial elections this year, is going to be the epicenter of a legal challenge to state constitutional bans on gay marriage.  As the ACLU of Virginia continues to get its house in order to file a challenge and put Republican gubernatorial nominee and current Attorney General Ken Cuccinelli on the defensive, one couple has decided they no longer wish to wait. 

Timothy Bostic and Tony London, a gay couple from the City of Norfolk filed a Complaint in the U.S. District Court for the Eastern District of Virginia , Norfolk division, to have Virginia's state constitutional ban on gay marriage declared invalid due to due process and equal protection violations under the 14th Amendment.  No doubt, the plaintiff's were emboldened by the recent Supreme Court decision in U.S. v. Windsor.  The Complaint was filed against three individuals in their official capacities: Governor Robert McDonnell, Attorney General Ken Cuccinelli, and Clerk of the Norfolk City Circuit Court, George E. Schaefer, III (the clerk is responsible for issuing the marriage license).

The couple wants to be married IN VIRGINIA

The couple has been together since 1989.  London is a navy veteran and a real estate agent.  Bostic is a college professor at Old Dominion University.  They sought a marriage license at the City of Norfolk Circuit Court a mere week after the U.S. v. Windsor decision and were turned down.  They apparently have no desire to go and be married under another state's laws.  The result is that there are no issues involving interstate law, and the Defense of Marriage Act [DOMA] is irrelevant to the court's determination.  The couple expressed through counsel that they "are Virginians and they want to be married in Virginia."

Where is the ACLU?

On July 9, 2013 the ACLU of Virginia indicated it was going to file a lawsuit challenging the Marshall-Newman amendment to the Virginia Constitution restricting marriage to opposite gender unions.  As I pointed out, the timing of such a lawsuit would be disadvantageous to the sitting Attorney General.  Nonetheless, the ACLU of Virginia has been seemingly silent since then, and have not filed any sort of challenge.  Presumably, the plaintiffs in the ACLU case will have been married in another state, and hence a DOMA challenge will be brought.  Nonetheless, time is quickly passing for such a case to have any effect on the Virginia Governor's race. 

Bostic v. McDonnell

The way the Complaint is captioned, Bostic v. McDonnell may very well be the seminal case in Virginia allowing for same sex marriage.  It is also the most likely matter to have any serious affect on the gubernatorial campaign.  Interestingly enough, if Cuccinelli loses in the fall, the Democrat Terry McAuliffe will be substituted for the main defendant, and this major precedent would then be coined Bostic v. McAuliffe.  Plaintiffs hired the firm of Shuttleworth, Ruloff, Swain, Haddad & Moorecock, P.C. in Virginia Beach.  The firm appears to focus on personal injury and criminal representation.

Battleground Virginia: Gay Marriage to become primary topic in Virginia's gubernatorial election

The ACLU is about to ensure that gay marriage becomes a major issue in Virginia's 2013 election.

Today, the ACLU of Virginia announced that it would be challenging Virginia's ban on Gay marriage in federal court.  This is part of a three pronged effort in Pennsylvania, North Carolina, and Virginia to challenge restrictions on gay marriage.  Virginia's ban, known as the Marshall-Newman amendment was passed in 2006 by a 57-43% margin. 

The Supreme Court's ruling

On June 26, 2013 the Supreme Court issued two rulings regarding gay marriage.  The California Proposition 8 case was dismissed for lack of standing, and was sent back to California for enforcement of the District Court ruling.  More importantly, the Defense of Marriage Act decision struck down a key component of DOMA in United States v. Windsor. (My curt analysis of U.S. v. Windsor can be found in my previous article).

These two decisions represented big wins for gay marriage proponents.  As of this morning, I expected these victories to have a severe negative affect on liberal turnout in November.  Hence, this would benefit Ken Cuccinelli.

What this means for Ken Cuccinelli

This lawsuit will have a huge negative effect for Ken Cuccinelli.

Ken Cuccinelli was one of the patrons of the Marshall-Newman amendment and one of its strongest proponents.  Ken Cuccinelli is also the sitting Attorney General for the Commonwealth of Virginia as well as the current Republican candidate for Virginia Governor.  In modern history, sitting Attorneys' General in Virginia resign from office during the election year in order to run for Governor.  Ken Cuccinelli decided to forego that trend, which has caused some complications.  Specifically the Attorney General's office has felt the need to withdraw from two different matters involving (at least tangentially) a company called Star Scientific. 

Now, the Attorney General's office will be in the thick of arguing in support of the Marshall-Newman amendment.  Whether Cuccinelli wants to, or not, he will be the face of the opposition to gay marriage.  Many voters pay little attention to political campaigns until the key campaign season between Labor day and election day. The ACLU lawsuit will probably be prepared for summary judgment or a motion to dismiss to be argued in court in late September or early October.  Any attempt by Cuccinelli to avoid discussion of social issues will be easily brought back to the issue du jour in Virginia, which will be gay marriage. 

Terry McAuliffe does not need to focus on the issue of gay marriage.  He simply needs to state his support (which he has) and allow debate moderators, and or the media to force Cuccinelli to repeatedly discuss his dogged defense of the Marshall-Newman amendment. 

This all comes down to turnout

Virginia has off year statewide elections.  The country focuses on Virginia and New Jersey each year after a presidential election.  New Jersey's race is widely considered to be uninteresting, leaving Virginia at the forefront of national news.

Cuccinelli's base is motivated.  No amount of criticism is going to decrease the turnout of the base. 

McAuliffe's base is unmotivated.  Although many liberals are motivated by *dislike* of Cuccinelli, few actually care for McAuliffe.  This enthusiasm gap is cured if McAuliffe has this social issue to run on.

Independents and right/left leaning voters, in my opinion, either support gay marriage, just do not care, or wish the government would just get out of the business altogether.  All three of these demographics will be turned off by the Cuccinelli's media manufactured focus on gay marriage, even if they opposed gay marriage in 2006.  This is because they would rather the governor focus on the economy, and jobs.

And then there is money.  With no nationwide initiative in the next six months, unlimited campaign contributions in Virginia, and an "anti-gay" crusader on the statewide ballot, gay marriage supporters can voice their concerns with their money.

The bottom line

Make no mistake, Ken Cuccinelli is not afraid to stand up for what he believes in, but winning statewide office in Virginia requires him to focus on something more than a divisive social issue. 

The nature and timing of this lawsuit may very well be the reason McAuliffe wins in November.

Virginia Can Engage in Mid-cycle Redistricting

Monday's redrawing of Virginia Senate Districts was likely Constitutional.

On Monday, Virginia Senate Republicans redrew Virginia's state senate districts utilizing their bare majority due to the absence of Senator Henry Marsh who was a couple hours up the road attending inauguration activities.

I have seen repeated calls for the plan to be struck down as unconstitutional under the Virginia Constitution.  Up until a few days ago, I agreed that mid-cycle redistricting was likely unconstitutional.

I repeatedly heard of a redistricting case from early 2012 in Richmond that prohibited mid-cycle redistricting, but no one seemed to have read the case.

I looked into some arguments, and had changed my mind.

Then I obtained a copy of the opinion.

In part:

The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”  VA. CONST. art. IV, § 14 . . . The Court is unable construe Article II, Section 6, [regarding apportionment] as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012.  Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011."  Slip Op pp. 7-8.

Reading the entire opinion is necessary if you want to understand the breadth and detail of the ruling.  The Judge did leave a loophole for later adjudication, and this legislation may beget the test case for that loophole.

Please note that this opinion is not binding outside of the parties in that case.  Nonetheless, the reasoning is sound, and I do not feel I could say it better myself.

The lawsuit to strike down the bill will likely fail, but the press generated will be damaging.  Republicans concerned about the effects on our statewide ticket this November need to urge the House to reject the legislation and the Governor to veto it.  Pass the bill in the light of day, and we will talk. 

As previously laid out the current senate districts from the Democrats are a travesty.

Cuccinelli not responsible for investigating vote suppression, yet (headlines failing to match the story)

A Republican employee of a vendor was caught throwing away voter registrations, and the media lazily and wrongfully blames the Attorney General of Virginia, Ken Cuccinelli for failing to investigate.

A twenty-three year old overzealous dweeb does something truly heinous

On October 18, 2012, Colin Small a 23 year old from Pennsylvania was arrested for throwing away 8 voter registration forms in a dumpster in Rockingham County.  It is unknown the reason for throwing away the forms, but the following theories have been suggested:

            1. It is part of a broad conspiracy to defraud voters.

            2. Colin failed to submit the forms by the deadline, and panicked.

Regardless, everyone seems to agree that Colin worked for a company called Pinpoint that was doing contracting work for the Republican Party of Virginia.

Soliciting voter registration applications and not submitting them, thereby resulting in disenfranchisement of voters, is truly heinous.

Don McEachin shows (once again) how little he knows about the law and Virginia government

In the wake of this mess, Virginia's former Democratic candidate for Attorney General stepped up demanding that Attorney General Cuccinelli investigate the actions of Colin Small.  State Senator McEachin should know that AG Cuccinelli does not have the power to initiate an investigation. 

McEachin either does not understand or does not care about the law here, and the media has taken off with the story.

What criminal investigative powers does the Attorney General have?

AG Cuccinelli has limited criminal investigative powers as enumerated in the Virginia Constitution and statutes.

Article V § 15 of the Virginia Constitution governs the Attorney General and says nothing about investigative powers of any kind.

Under Va. Code § 2.2-511 the Virginia Attorney General has the power to initiate criminal investigations in limited circumstances, specifically:

"A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving (i) violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.), (ii) violation of laws relating to elections and the electoral process as provided in § 24.2-104 . . ."

AG Cuccinelli can investigate electoral crimes as provided in Va. Code § 24.2-104, which states in relevant part:

"When the State Board is of the opinion that the public interest will be served, it may request the Attorney General, or other attorney designated by the Governor for the purpose, to assist the attorney for the Commonwealth of any jurisdiction in which election laws have been violated."

The "State Board" in this instance is the State Board of Elections ["SBE"].

Additionally under Va. Code § 24.2-104:

"The attorney for the Commonwealth or a member of the electoral board of any county or city may make a request, in writing, that the Attorney General appoint a committee to make an immediate investigation of the election practices in that city or county . . ."

In no manner can AG Cuccinelli initiate an investigation himself.  The Governor can authorize the investigation under Va. Code § 2.2-511 and the SBE, local Commonwealth's Attorney (Constitutionally elected prosecutor), or local electoral board member can initiate the investigation under Va. Code § 24.2-104.

The SBE has chosen not to investigate.

The left gets this (mostly) wrong

In light of McEachin's statements, the left has mercilessly pushed this story as a failing of AG Cuccinelli, but only in the headlines of articles.  When reading into the text of the articles, the accusation against AG Cuccinelli has absolutely no substance.

Headlines are as follows:

Attorney General Refuses To Investigate Man Arrested For Dumping Voter Registration Forms

Virginia AG won’t investigate GOP worker who dumped voter registration forms

Will Votergate Come Back to Haunt Cuccinelli?

Virginia Refuses To Investigate The Dumping Of Voter Registrations, Charged To A Republican Operative

Attorney general won’t investigate worker arrested for dumping voter registrations

AG Cuccinelli seeks responsibility and McEachin doubles down on stupidity

In response to the demands being placed on AG Cuccinelli, he responded to McEachin by requesting that the Attorney General's office be given additional authority to initiate investigations of election law violations without waiting for a request from the SBE. 

According to the Washington Post McEachin responded as follows:

"McEachin (D-Richmond) said he has seen the letter [from Cuccinelli] and suggested that political motivations could be the reason Cuccinelli is not pursuing the issue."

I am beginning to hope McEachin runs statewide again.

Power over Virginia property rights can be returned to the citizens in 2012

Virginia has a rare and important statewide matter on the ballot for November.  In addition to the Presidential election, Virginia has a statewide ballot measure where voters will get to decide if private property continues to have meaning or if politically connected developers can seize your property when it is deemed to benefit the public coffers.

An opportunity to permanently curtail the power of both the state and local government in Virginia is upon us.

History

In 2005 the Supreme Court eviscerated the right to keep one's own property when faced with private developers seeking a larger commercial development in the decision of Kelo v. City of New London, 545 U.S. 469 (2005).  Lower middle class residents sought to prevent the City of New London Connecticut from taking their property via eminent domain as the owners argued the property was not being taken for "public use" as required by the 5th Amendment.

Our antagonist in this story, Pfizer, Inc. wanted to build a large scale commercial development, and seizing the property of private homeowners was necessary to achieve Pfizer's goal.  The City of New London used the power of eminent domain, claiming that the improvement to the property would be a "public use."  This public use was couched in terms of increased tax revenue and a wealthier citizenry.

The Supreme Court essentially stated there are no bounds to "public use" as anything that financially benefits a government could now be considered public use.

The uproar among private citizens believing in keeping their small portion of the American dream was heard throughout state legislatures nationwide as laws were passed to placate their worries.  Virginia moved quickly and successfully to pass laws restricting eminent domain to actual public uses at the local level. 

The Dillon Rule

Virginia is a Dillon rule state.  In short the Dillon rule indicates that a local government only has those powers granted to it by the statewide government.  If the Virginia General Assembly decides to grant or revoke a power to a locality, the locality must abide by that grant or revocation.

As localities are governed by the Dillon rule, the General Assembly curtailed the power of localities to use eminent domain to take private property for purposes of bolstering a tax base.

Private property was safe, or so it seemed.

What is actually on the ballot in November 2012?

Oddly, finding anything other than innuendo about the property rights amendment in November is exceedingly difficult.  The public should understand both the provision on the ballot, and the actual language in the amendment.

The language you will see on the ballot is as follows:

"Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?"

This description is generally accurate, but omits the primary criticism of opponents of the amendment.

The actual text of the Amendment to the Virginia Constitution is as follows:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

We will come back to the text in a moment.

The controversy over the Property Rights Amendment

Those in favor:  Those in favor of the Amendment appear to be general private property advocates and broadly speaking, farming interests.  They express that we need to enshrine the definition of public use in the Virginia Constitution.  Further, proponents appear to desire that compensation for any taking of private property take into consideration lost profits and lost access.  These are generally not included in the calculation of compensation.  It should be noted that the terms "lost profits" and "lost access" are to be defined by the General Assembly."

Those opposed: Those opposed were local governments through their voluntary collective associations.

Now it seems that the Virginia Association of Counties no longer opposes the Amendment.

The Virginia Municipal League appears to still oppose the Amendment largely due to the "lost profits" issue. 

Apparently the Virginia Democrat powers that be ["VADemSCC"] also oppose the property rights amendment due to the cost and complexity of compliance for local governments.  Additionally, the VADemSCC also feels the Amendment is merely duplicative. 

Why the Amendment is extremely beneficial

Private property rights are not safe, but can be much safer.

1. The Dillon rule allows for grants and revocations of powers.  Although today public use is limited for local governments, a future general assembly might slowly water down the definition of public use.  The doctrine of entrenchment prevents a current legislature form binding future legislatures.  The only solution to prevent the watering down of fundamental rights is this Constitutional Amendment.

2. The General Assembly has been laboring under NO RESTRICTIONS.  Although the General Assembly can pass a law restricting the Governor's office from exercising eminent domain at the state level, that law can be undone completely, or exceptions made on a whim by a subsequent General Assembly.  Once enshrined in the Virginia Constitution, these restrictions can not be undone on a whim or one simple exception.

3. This Amendment contains the holy grail of eminent domain opponents.  Although not discussed in any detail, compensation must be made for "damaged" property, and not just property taken in total.  This allows a landowner to be compensated for something referred to as a "regulatory taking."  This is an instance in which a regulation reduces the value of property.  This is an incredible curb to government power, and significantly bolsters the rights of private landowners of all kinds.

Those opposed neither want to acknowledge nor contest the above three benefits, as the public at large tends to support private property rights in concept. 

Virginia residents, please be sure to register and vote to protect your rights in November.

Individual mandate unlikely to be struck down

In the waning hours before release of the opinion, I am compelled to make my prediction regarding the Supreme Court ruling on Obamacare.

I believe the individual mandate will not be struck down.

Specifically, one or more of the following, on stare decisis grounds or on the grounds that it is a political question, will rule that the government with a rational basis may compel the purchase of a product pursuant to the commerce clause: Scalia, Roberts, or Kennedy.

I believe the states themselves will be considered to not have standing to challenge the individual mandate, and this will likely be a 6-3 or 7-2 decision.

I believe that the states' challenge on Medicaid grounds will be defeated unanimously.

I believe one or more of the following will rule against the challengers to the individual mandate due to either a lack of ripeness, failure to comply with the anti tax injunction act, or complete lack of standing: Ginsburg, Sotomayor, Breyer, Kagan, or Kennedy.

If all of the above happens, then the individual mandate will not be struck down, but will not be deemed constitutional.  The fight will be left for another day.

I hope I am incorrect...

Why Virginia will not be invited to the dance (the Supreme Court battle over the individual mandate)

In 2012 the Supreme Court will decide for the first time if Congress has the power to force the purchase of a good or service under Article I § 8 of the Constitution, and Virginia will be left watching from home.

President Obama signed the PPACA, a sweeping overhaul of America's healthcare system, into law in March 2010.  Litigants, including high profile state attorneys general lined up to challenge the new law, specifically the individual mandate.  A strategic decision to bring suit separately by the Commonwealth of Virginia was a tremendous gamble, and is about to become a losing bet.

On September 8, 2011 the U.S. Court of Appeals for the Fourth Circuit overturned Virginia's challenge to the individual mandate in Commonwealth v. Sebelius.  The fact the 4th Circuit upheld the individual mandate was not surprising given the expectations from the panel selected.  The concerning element of the ruling was the reason for the dismissal, standing.  Standing is the doctrine that one must be the party actually injured before you are allowed to bring a lawsuit, the concept is derived from Article III § 2 Cl. 1 of the Constitution.  Further discussion of standing can be found here.

Decisions from the 6th, 11th, and now 4th Circuit are ready to be appealed to the Supreme Court.  Other courts are not far behind.  Because of the nature of the 4th Circuit ruling in the Virginia case, I predict the Supreme Court will not invite the Commonwealth of Virginia to argue in one of the most important cases of our era.

Did Virginia make a mistake by going it alone?

In a word, no.

A bare minority of states decided before the PPACA was passed to sue to invalidate Obamacare once it was passed.  This became the successful Florida and 11th Circuit cases.  Virginia declined to participate in that lawsuit.  I believe there are three major reasons why Virginia pursued this matter separately.

1. Speed:  Virginia could file in the U.S. District Court for the Eastern District of Virginia also known as the "Rocket Docket."  It is called this because statistically the E.D. Va. is the fastest federal court for adjudicating civil cases in the country.  By suing in the E.D. Va. Virginia could likely get a decision sooner, be in the appeals court sooner, and be the first to appeal to the Supreme Court.  The Fourth Circuit is also known for being fairly swift.

2. Medicaid:  The other states wanted to pursue another argument regarding the unconstitutionality of Obamacare due to additional burdens placed on state Medicaid programs.  When the federal government gives money to the states it can do so with strings attached.  There are some minor limitations to this principle, but they did not apply in this instance.  Despite winning in both the district court and the 11th Circuit on the issue of the individual mandate, the other states lost the Medicaid argument before all of these judges.  This was a bad argument, and watered down an otherwise strong and more important argument invalidating the individual mandate.

3. VHCFA: Virginia passed the Virginia Health Care Freedom Act ("VHCFA") shortly before the passage of Obamacare.  This act says in short: "No resident of this Commonwealth, . . . shall be required to obtain or maintain a policy of individual insurance coverage . . ."  Va. Code § 38.2-3430.1:1.  This law provided Virginia a unique opportunity to challenge a federal law as being in direct contravention of a state law.

These are all good reasons.

Many will speculate as to the additional reasons Virginia filed separately.  The purpose of this article is not to speculate as to those additional reasons.

Did something go awry in the District Court?

No.

Virginia, for the most part won at the District Court level.  The little Virginia lost (conceivably a large loss), allowed Virginia to control the timing of appeal.  Virginia did what it planned and successfully used the speed of the rocket docket to reach the 4th Circuit first.

Should Virginia have merged its case in the 4th Circuit?

Probably not.

A case from the Western District of Virginia also reached the 4th Circuit at about the same time.  This case, Liberty U. v. Geithner, was brought on behalf of a university and a handful of individuals on commerce clause grounds, and religious liberty grounds.  The plaintiffs in Liberty U. lost at an early stage in their case in the district court.  In the 4th Circuit the cases were to be heard on the same day by the same judges, but were to remain separate.  Virginia made no attempt to merge the two cases.

The Liberty U. plaintiffs had problems showing standing, and their religious liberty arguments were fairly weak.  Virginia, as a governmental entity, came into the 4th Circuit in a strong position, and made a good strategic decision not to tie its fate to the Liberty U. plaintiffs.

Virginia lays the groundwork for its loss.

After all the briefing, and preparation, Virginia laid out the basis for its loss at oral argument.  The 4th Circuit panel selection was unfavorable for Virginia.  Virginia made things worse as the panel hammered counsel on the issue of standing, and counsel for Virginia ultimately rested their entire basis for standing on the VHCFA.  Stating in no uncertain terms:

"I'm resting my claim on my statute." - Va. Solicitor General at oral argument on Commonwealth v. Sebelius, Record No. 11-1057, U.S. Court of Appeals for the Fourth Circuit, May 10, 2011.

For a detailed discussion of oral argument see my post here.

Intervening trouble

After the 4th Circuit argument, the 6th and 11th Circuit's hear oral arguments in similar cases.  The 4th Circuit then orders Virginia to perform additional briefing, delaying the potential date for a decision.  The 6th Circuit turns around a decision in approximately one month upholding the individual mandate.  Virginia has now lost the advantage of speed.  The 11th Circuit then rules, striking down the individual mandate and dismissing the Medicaid challenge without fanfare.  Virginia lost its second reason for going it alone.  The 4th Circuit does not rule until September. 

Virginia took just enough rope . . .

Relying on Virginia's steadfast unwavering statement that the VHCFA is the only basis Virginia has for standing, the panel reversed the district court and dismissed Virginia's case for lack of standing.  The panel did not even explore any other possibilities for standing because Virginia chose only one.  Regardless of the panel, this was always a mediocre legal argument, but a good argument in the media.  Yet, the case is not tried in the media.  The last reason to go it alone was gone.

But how did the other states survive this hurdle?

In a little discussed portion of the 11th Circuit opinion, the court examined the nature of the parties in the 11th Circuit case.  By that time, 11th Circuit case involved over 25 states, the NFIB, and a handful of individuals.  The 11th Circuit analysis indicates

"Although the question of the state plaintiffs’ standing to challenge the individual mandate is an interesting and difficult one, in the posture of this case, it is purely academic and one we need not confront today. The law is abundantly clear that so long as at least one plaintiff has standing to raise each claim—as is the case here—we need not address whether the remaining plaintiffs have standing. See, e.g., Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S. Ct. 205, 212 (1981) . . ."  p. 10.

The 11th Circuit determined that at least one individual plaintiff had standing, and as such all the plaintiffs may proceed.  No such individual plaintiffs were joined with Virginia in its lawsuit, and it would have been difficult to predict this outcome.

If Virginia lost due to lack of standing, do they still get to go to the Supreme Court?

I believe the answer to this question will be no.

Standing is a procedural issue.  A decision on the Constitutionality of the individual mandate is a substantive ruling.  The Supreme Court takes only a small proportion of all cases appealed.  One of the major factors it looks for when deciding to take cases is a circuit split, a disagreement between circuit courts on a major issue.  There is currently a circuit split between the 6th and 11th Circuits on the Constitutionality of the individual mandate.  The 4th Circuit dismissed Virginia's case on procedural grounds, and did so on an issue that is nonexistent in all the other cases.  The Supreme Court will likely take the appeals of the 6th and 11th Circuits and may even join in the Liberty U. case and cases not yet decided in the 3d, 9th, and D.C. Circuits. 

If the Supreme Court allows Virginia to proceed, it will add a substantial additional complicated standing issue for which there is no current circuit split.  For this reason I expect that Virginia will not be invited to the dance and will have to watch the litigation play out with the rest of us.

Where was the mistake made and what can be done?

At some point extremely early in the litigation, during the first motion to dismiss filed by the federal government in the district court, Virginia made the decision to use this argument, and only this argument to create standing.  Judge Hudson agreed with Virginia’s reasoning, and Virginia did not have to face this issue again until the appeal. 

Little can be done to add to the existing arguments.  The same argument was brought at both the trial and appellate levels and the petition for writ of certiorari has already been filed.

Making this argument was a huge risk.  If successful, it would provide an avenue for extensive 10th Amendment litigation driven by federalist attorneys general.  This would possibly be an even bigger victory than simply overturning Obamacare.  If unsuccessful, Virginia ran the outside risk that it would be left out of a Supreme Court battle that may decide the scope of Congressional power for decades to come.

If Virginia does not get before the Supreme Court, it is time to bring the next 10th Amendment case, and then the next one.  Still, in Commonwealth v. Sebelius Virginia took the risk, and it looks like it is about to come up on the short side of history. 

My previous analysis of litigation regarding the individual mandate can be found here.