Virginia will file suit against the federal government if the Democrats' health care reform bill is approved, said a spokesman for Virginia Attorney General Ken Cuccinelli II (R) this afternoon.
Cuccinelli (right) has suggested previously he would likely file suit, but spokesman Brian Gottstein said that Virginia's lawsuit over government health care is now certain. Although Gottstein gave no details of the legal basis for this kind of lawsuit, he indicated that the process is "still being worked out."
In a letter to Speaker of the House Nancy Pelosi, Cuccinelli warns Democrats of using the "deem and pass" approach, which would not permit a freestanding vote on the Senate-passed health care reform bill.
“Based upon media interviews and statements which I have seen, you are considering this approach because it might somehow shield members of Congress from taking a recorded vote on an overwhelmingly unpopular Senate bill," Cucinelli wrote in the letter.
Cuccinelli has already been the source of political controversy this year for removing sexual orientation from the state's non-discrimination policies.
But Virginia isn't the only Republican state that is considering lawsuits to combat Democrats' strategies that “raise grave constitutional questions," as Cuccinelli put it.
Prominent Republican lawyers have said legal arguments are already being drafted to throw Washington into a legal battle if health care reform passes Congress. And the "deem and pass" rule is front and center of the debate.
“There is a lot of discussion among various lawyers and we’ve had some conference calls,” said Cleta Mitchell, a Washington attorney long active in GOP circles. “People are just distraught that the Democrats are even contemplating doing something like this. It’s utter lawlessness to deem a bill passed without voting for it. It’s horrific.”
Legally, the rule is somewhat of a gray area in politics. But Tim Jost, a law professor at Washington & Lee University, believes the health care bill would be perfectly legitimate even if Democrats are forced to use "deem and pass."
“The Constitution says that each house can write its own rules. Those rules are up to Congress to adopt and they’re not going to be second-guessed by the courts,” said Tim Jost, a law professor at Washington & Lee University. “As long as there is a vote on the language of the Senate bill, however they go about doing this, then the Senate bill is adopted by the house and they’ve met the requirements of the Constitution.”