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Opposing counsel

Healthcare | A promising lawsuit against Obamacare has brought Virginia Attorney General Ken Cuccinelli-and his Madisonian outlook-into the public eye

Issue: "After the revolution," Feb. 26, 2011

Ken Cuccinelli laces up the black Reebok shoes he just bought at a Dick's Sporting Goods in Richmond, Va. He found the $40 pair of shoes hidden in a row of $80 shoes. Despite this deal, he claims they are the most expensive pair of athletic shoes he has ever owned.

The attorney general of Virginia is readying to take the court, but not the one you might think. Tonight, Cuccinelli, 42, is facing off with members of the Virginia General Assembly at a basketball gym near the city's Capitol Square. And he's a little nervous, mostly because he didn't have the best pregame meal-a couple of McDonald's hamburgers washed down with sweet tea. "It is not the smartest thing I've done today," he admitted. "I don't usually do two of those in a day."

Wearing a red Roanoke Tea Party T-shirt, Cuccinelli, with dark eyes and dark hair atop a frame that remains thin despite his fast food choices, warms up with a couple of air balls before sinking two shots in a row. "I'm done," he says.

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When the game starts, Cuccinelli, who spent more than a dozen years refereeing youth basketball, is not too afraid to take risky shots. In three out of the four games tonight, he takes the game's opening shot. His team finishes with a 4-0 record after he sinks the game-winning shot in the final contest. "Cuccinelli knows how to close it out," one of the players shouts.

It's nearly 9 p.m. on Jan. 25, and President Barack Obama is about to give his State of the Union speech. Cuccinelli merely glances at a television screen while exiting the gym. It is time for him to head home: two hours away in a Northern Virginia suburb of Washington, D.C.

Cuccinelli's first year as attorney general ended about a month ago, and it was a little like his evening basketball game in Richmond. He did not waste time easing himself into his new position, and his fearlessness in taking on the federal government brought instant controversy. (He jokes that the swearing at him began the day after his swearing in.) But the year in office has made him one of the nation's highest-profile attorneys general. "We have not been bored," he admits.

Last February, Cuccinelli filed a legal petition to the Environmental Protection Agency-an organization he likes to call the Employment Prevention Agency-asking it to reconsider its decision to regulate certain emissions and questioning its global-warming findings.

Then on March 23, the same day that 235 years earlier another Virginian in Richmond named Patrick Henry uttered the words, "Give me liberty or give me death," Cuccinelli filed suit to stop the new federal healthcare law. The attorney general argued that the law's individual mandate to force everyone to buy insurance or face penalties violates the U.S. Constitution. Healthcare supporters called the lawsuit frivolous. But in December a federal judge from Virginia thought otherwise, ruling in favor of Cuccinelli and striking down the mandate that many consider the overhaul's tent pole.

Cuccinelli makes no apologies for his aggressiveness. He argues that the nation is in the midst of the "greatest erosion of liberty in my adult lifetime." His state, he says, is "not a wholly owned subsidiary of U.S. Congress, Inc."

Attorneys general from around the nation seem to agree: Twenty-six states filed a similar suit against the new healthcare law, and on Jan. 31 a Florida judge delivered a bombshell ruling when he sided with those states and declared the entire law unconstitutional.

With the Feb. 2 legislative defeat of congressional healthcare repeal efforts in the U.S. Senate, the focus of the fight against Obamacare is shifting to the nation's courts. Cuccinelli now is asking the Supreme Court to waive the normal appeals process and fast-track his Virginia healthcare lawsuit. While the other states banded together, he decided to have Virginia go after Obamacare alone. As a result, he is fast becoming the face of the healthcare debate.

This makes Cuccinelli a hero to some but a villain to others. Why fly solo against the federal government? The answer likely is found in his love of history. He calls Virginia the perfect place, thanks to its rich history, for defending the Constitution. "This lawsuit is about liberty, not healthcare," he says. "If they can order you to buy this, they can order you to buy anything. Frankly, the federal government ought to be knocked back here. It has overstepped its boundaries."

Cuccinelli was tea party long before there was a Tea Party. He grew up reading about Revolutionary War heroes and now comfortably refers to James Madison's Federalist Papers as if they were written yesterday. He says that by being Washington's foil, he is only doing what Madison intended-providing the institutional tension between state and federal governments that keeps both powers in check. On a recent cold Monday morning in Richmond, Cuccinelli stood before a "proclaiming Christ in the heart of the city" banner and addressed a room full of Christian students visiting the state capitol.

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