By: LAURA VOZELLA | THE WASHINGTON POST Published: July 23, 2012 Updated: July 23, 2012 - 12:00 AM

Ken Cuccinelli, the first state attorney general in the nation to sue over the federal health care law, has hit upon a new strategy that is much easier than going to court: do nothing.

Virginia and other states can shield businesses from hefty fines for not providing adequate health insurance for employees, he contends, simply by refusing to set up their own state-based insurance exchanges.

Cuccinelli bases that legal theory on a quirk in the law, one variously attributed to sloppy drafting, political miscalculation or both: It includes a provision to impose those fines under state-based exchanges, but not under a federal one.

"In the law, it says those penalties don't apply if the federal government sets up the exchange," he told a tea party gathering in Henrico County last week. "Whoops!"

Supporters of the law acknowledge the wording glitch but say the matter has been clarified through regulations subsequently issued by the Internal Revenue Service. They dismiss Cuccinelli's line of attack as wishful thinking or willful distortion.

"That argument is effectively null and void, but it's not stopping people from making it," said Chad Shearer, deputy director of Princeton University's State Health Reform Assistance Network.

Crafted by a Cato Institute scholar about a year ago, the theory started quietly making the rounds among conservative think-tank scholars, attorneys general, lawyers and bloggers while the matter was before the Supreme Court. It has picked up steam since the court upheld the law in June.

For Affordable Care Act foes who first tried to kill the law in the courts and now aim to do so by electing Republican Mitt Romney president, the do-nothing approach is a long-range Plan C.

"This could bring down the entire law," said Michael F. Cannon, the Cato Institute's director of health policy studies who crafted the argument and urged Cuccinelli, a longtime friend, to pick up on it. "If Virginia just sits on its hands and does not implement 'Obamacare,' then state officials will protect Virginia employers from a $2,000-per-worker tax."

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Cuccinelli's do-nothing tactic against 'Obamacare' easier than court challenge