(CNSNews.com) - Virginia Atty. Gen. Ken Cuccinelli told
“One thing people need to realize about this case: It’s not about health insurance, it’s about liberty,” Cuccinelli said in an “Online With
Cuccinelli filed a federal lawsuit against Obamacare on March 23, the same day the president signed the health-care reform bill into law. The suit challenges the notion that the federal constitution gives the U.S. Congress the power to enact laws forcing Americans to buy things they do not want to buy. According to the Congressional Budget Office, prior to enactment of Obamacare the federal government had never before ordered Americans to buy any good or service.
U.S. District Judge Henry E. Hudson, who serves on the U.S. District Court in
Cuccinelli said he expects the case to reach the high court in about two years.
Read the full transcript of Cuccinelli’s interview with CSNews.com below and watch the video here:
In 2002, he was elected to the
Virginia Atty. Gen. Ken Cuccinelli: Glad to do it.
Jeffrey: You filed suit against the health care reform law that President Obama signed last March. You represent the state of Virginia, one of the original 13 states that ratified the Constitution of the
At the time of the ratification, during the ratification process of the Constitution, James Madison, a Virginian, became upset that there were some people in the ratifying conventions and the debates surrounding the ratifying convention--that people were misinterpreting the General Welfare Clause of the Constitution which is the very first part of Article I, Section 8, which gives the powers of Congress. That clause is a taxing power, and it says that Congress can raise taxes to provide for the common defense and the general welfare of the United States and subsequent to that it lists the enumerated other powers of Congress.
In Federalist 41, James Madison--while the ratification was going on--wanted to correct those people who incorrectly thought that the “general welfare” would give a new federal government the power to tax for any reason whatsoever. He contended specifically in Federalist 41 that Congress could only do those things and tax for those things that were in the subsequent specifically enumerated powers that were in Article I, Section 8 of the Constitution. Was James Madison right or wrong about the Constitution?
Cuccinelli: It didn’t work out that way. You can go to 1795, when he was in Congress, and they had a widows-and-orphans bill and he said: I can’t put my finger on that portion of the Constitution that gives Congress the authority to spend money for good-hearted charitable purposes. As good hearted as they might be, that power doesn’t exist in the Constitution. So, they didn’t take very long in expanding that power and of course it has expanded steadily right up to the present day. Things did not work out entirely as James Madison envisioned them.
Jeffrey: Even though he thought it might be a good thing to help widows and orphans, he did not believe that Constitution, of which he was the principal writer, in fact gave the federal government the power to do that?
Cuccinelli: He didn’t think it allowed it. He did not think it allowed it. And obviously we’ve gone on to see Congress do a lot more things than that. And he did say that he’d be happy to spend his own money to help the particular family in question, but that he still didn’t think that the federal government should be doing it.
Jeffrey: Now, in this debate, as you say, at the very beginning of the Republic after the Constitution; well, in fact, after
Cuccinelli: Right, June--
Jeffrey: June. You had the convention here in
And he noted that there were people, such as James Madison, who was sitting in the room at the time, that said: No, the federal government will only have the powers delegated to it by the Constitution specifically. And one of the things that Mason and others advocated was the enactment of a bill of rights that would include the language that became the Tenth Amendment to the
Cuccinelli: Well, again, obviously not, because the 10th Amendment has--the only simple restriction that the 10th Amendment has effectively placed on the federal government is when the federal government orders states or local government officials to do things, the courts block them from that. That’s really, just off the top of my head, that’s all the courts have provided for there.
And it’s also interesting to note that James Madison vehemently opposed the notion that there should be a Bill of Rights. He said that it’s enumerated powers. If it’s not written there, they don’t have the power. So, you don’t need something like a Tenth Amendment or a Bill of Rights.
Jeffrey: This is his original position.
Cuccinelli: Exactly. And everyone in the 13 states knew, first of all, that
To get that margin, James Madison had to promise a bill of rights. He had to commit to supporting a bill of rights. It was a complete political maneuver on his part. And he saw it through. I mean, he took it up in earnest when he got to Congress. And of course we ended up with the Bill of Rights. But he didn’t want it, and he felt so strongly that if it doesn’t say it, than the federal government can’t do it, and it didn’t work out that way at all.
Jeffrey: What’s interesting about that, general, and maybe most Americans don’t realize at this point and it ought to be something we become more conversant with, is Madison’s argument to the people before the ratification of the Constitution was the federal Congress will not be able to do anything but these specific enumerated powers that are listed here in Article I, Section 8, of the Constitution. Therefore, we don’t need a Bill of Rights. You don’t have to worry about the federal government doing all these things that aren’t listed there because we all know they’re restricted to that power.
Jeffrey: So he argued that even without the Bill of Rights--and even without the 10th Amendment which says that the federal government is restricted to those powers delegated to it and the rest are reserved for the states and the people—that even without the Bill of Rights, the federal government would be limited to that.
Jeffrey: So, we know, anybody who goes back and looks at--carefully looks at--the actual language of the Constitution, the debates that happened during the ratification of the Constitution, and what all of the people involved in those debates said and conceded, and the reason for the Bill of Rights being actually ratified, written and ratified, is there any reasonable grounds for debating that the original intent of the Constitution did not give the federal government a power to reach out and force Americans to do anything based on the General Welfare Clause?
Cuccinelli: No, not at that time. It developed. Rather quickly, I might add.
Jeffrey: Is, in fact, the Obama administration going into federal court now and arguing that it can force Virginians to buy health insurance based on the General Welfare Clause of Article I, Section 8?
Cuccinelli: There are two clauses--well, one clause, two parts of it--at stake. The Commerce Clause, which is our target because we are challenging the individual mandate, the ability of the federal government to approve Nancy-approved health insurance. That’s one. Their fall back position, in case we prevail in that, is that the penalty that you have to pay if you refuse to buy the Nancy-approved health insurance is a tax under the taxing-and-spending-for-the-general-welfare clause.
If that is true, we have called that a radical position. And the position is quite simple: If all they have to do to get you to do anything is order you to do it and couple that with a financial penalty if you don’t obey, than we have blown the doors off the notion that there are any limits left on the federal government. And, critically, there’s no unique sphere of authority left for states.
Jeffrey: Ok, now if I’m a Virginian, which I am –
Jeffrey: I’m glad to be a citizen of the state of
Cuccinelli: They’re telling you that for folks that make four times the poverty line, everyone must either purchase one of their approved health insurance plans and that they’re provided in the private sector, but so what? They’re dictating what goes in the plan and they’re ordering you to buy it.
Jeffrey: Without a subsidy, if you make four times the poverty line.
Jeffrey: But if you make under four times the poverty rate you still have to get it, they’ll just give you a subsidy --
Cuccinelli: There’s actually a gap from 133 percent of poverty to 400 (percent) that isn’t covered.
Jeffrey: You don’t have to buy it?
Cuccinelli: Nope. It’s not much discussed. It’s 133 down and 400 and up percent of the poverty line.
Jeffrey: So if you earn less than 133 percent of poverty, they don’t mandate you, but they’ll buy you health care. They’ll put you on Medicaid.
Cuccinelli: Correct. And one thing that happens to our state government and all the state governments is there’s a massive expansion of Medicaid. It’s incredibly expensive for us.
Jeffrey: But under the law, you’re understanding of Obama’s health care law, if you earn more than 133 percent of the poverty level and less than 400 percent of the poverty level, they will give you a subsidy to buy healthcare in the exchange, but they don’t require you to buy health care?
Cuccinelli: Honestly, I’m not entirely sure, because it isn’t the area of the mandate. It is not a universal proposal. They, for political reasons and what I was going to say was--let’s face it, there are major political considerations that went into all of this--one way of looking at what they’ve done is avoided a tax vote. And the Founding Fathers created these separate powers so there’d be accountability for each one. And what they’ve done here is instead of taxing you, taking your money, and spending it for health care--which they do with Medicare, for instance--instead of doing that, they have ordered you to go buy the health insurance that will fund the same thing and they’ve given orders over in that direction because those folks are engaged in commercial activity--they can be reached under the Commerce Clause--they’ve given instructions about--i.e. law, set out law--about what the restrictions and parameters that those health insurance companies and health care providers are going to have to abide by.
So, they’re end running the tax clause, the taxing power, because they do not want to have to take a tax vote. Let’s face it, if you actually stacked the tax into this bill that it would actually take to pay for it, I’m sure they’d have plenty of lefties that would vote for it, but no where near a majority and they wouldn’t get their filibuster-proof vote in the Senate.
Jeffrey: So if you’re a citizen of the United States in Virginia or any other state and you make more than 400 percent of the poverty level, which was $82,000 [sic $88,200] more or less last year for a family of four, they’re ordering you that you have to go out and buy a health insurance plan that meets their requirements and they’re not going to give you a subsidy to do it. You’re going to either have to do this with your own money or your employer’s going to have to buy it for you.
Cuccinelli: Or you’re going to be ordered to pay the penalty.
Jeffrey: Or you’ll pay the penalty for not agreeing to their mandate. Now, what constitutional language did they claim justifies the federal government telling me or any other Virginian or any other Californian they have to do that?
Cuccinelli: They claim that the Commerce Clause that allows the Congress to regulate commerce, interstate commerce--and things that affect interstate commerce, which is critical here--gives them the power to do this.
Now, this is all after-the-fact claims. You recall when this bill was rolling through and the speaker was asked, “Where do you get the Constitutional authority to mandate that Americans buy particular health insurance?” and her erudite response was, “Are you serious?” And, “As a matter of fact, Madame Speaker, we are serious.” Nonetheless, I think she showed in that answer how little--i.e. not at all--she had thought about the constitutionality.
And I’ll remind you, I was a legislator as you noted. You take an oath to protect that Constitution too, to abide by it. They totally ignored it. They don’t care. They do not care about the Constitution. It’s a tremendous inconvenience for them and you know what? It’s supposed to be.
Jeffrey: General Cuccinelli, that question, by the way, was asked by Matt Cover, a reporter for
Cuccinelli: Good for him. Good for him. It was a great question.
Jeffrey: Now the Commerce Clause to the Constitution that they’re using to defend this, it gives Congress the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. Now, if I’m sitting in my house in Northern Virginia and I’m not trading something with people in Great Britain and I’m not trading things with someone in an Indian tribe and I’m not trading something with someone even in West Virginia, how am I engaged in interstate commerce?
Cuccinelli: The way the hook you, and the court has allowed them to do this—let’s face it, that’s where this expansion came in the earlier part of the twentieth century--the way they hook it is that basically anything bought, sold, used in commerce, whether it crosses state lines or not, affects the whole market and the market crosses state lines. It is a very expansive reading of the Commerce Clause, but it’s the one in the law now.
The way the Supreme Court would identify it is there are three things they can regulate: goods crossing state lines--and we’re just talking about the interstate portion of this--goods crossing state lines, instrumentalities or entities or effects on goods in interstate commerce, that’s the second, and, then, activities that are intrastate that can affect interstate commerce. So those don’t even have to be economic activities.
Justice Thomas, by the way, has indicated that he does not think that that third prong makes any sense under the Constitution.
Jeffrey: Right. So, if someone is growing peaches in the Shenandoah Valley, and I’m living in Fairfax County and I drive out to the Shenandoah Valley in the state of Virginia, never leave the state of Virginia, and buy peaches from that farmer with my own cash money, even though that in no way was interstate commerce--I wasn’t having trade with any body across state lines and even though he may never have--the Supreme Court defines that purchase of the peach as an act of interstate commerce?
Cuccinelli: They sell peaches in other states and the peach market in
Jeffrey: Now, you would argue that the Founding Fathers, when they wrote the Constitution, wrote the Commerce Clause, they did not intend for a person in
Cuccinelli: Oh, I do not think so. They were concerned with, between the states, was essentially trade wars between states.
Cuccinelli: Yes. Tariffs at the state line, that’s what they were worried about. They wanted to create a free-trade zone within the
Jeffrey: So, you don’t necessarily agree with the 20th century Supreme Court’s expansion of the meaning of the Commerce Clause?
Cuccinelli: No, I definitely do not, but I have to work with it as the attorney general of
Jeffrey: So, in your lawsuit against Obamacare you are accepting as stare decisis what you understand to be an incorrect reading of the Commerce Clause--but it’s what the Supreme Court has decided, so you’re going to let that be.
Cuccinelli: Put differently, the way we say it to the court is: “You don’t have to overturn any cases that you’ve already decided to rule against the health-care legislation.” It is beyond even what the Supreme Court has allowed the federal government to do. It goes beyond anything ever before in legislation, and the judge in our case has acknowledged that, the judge in the Florida case, Judge Vincent, has acknowledged that, and the judge in Michigan who ruled that the individual mandate was constitutional, that the legislation was unprecedented.
Jeffrey: So, you said one of the prongs that the Supreme Court looked at to say that the federal government could regulate commerce is even if intrastate commerce--commercial activity within a state--had and impact on commerce elsewhere--
Attorney Gen. Cuccinelli: And that’s the prong at issue in our case.
Jeffrey: Okay. So now someone is sitting in their home in
Cuccinelli: And that’s enough of a burden.
Jeffrey: Right. It could be--depending whether you’re a Dallas Cowboys fan or a Redskins fan.
Cuccinelli: I’m a Redskins fan.
Jeffrey: So, they’re just sitting there, watching the Redskins game, but they don’t have health insurance. Now--
Cuccinelli: Because they’ve decided not to do anything. They’ve decided not to buy health insurance.
Jeffrey: They’re buying lots of other things. Maybe they’re sending their kid to parochial school.
Cuccinelli: Let me tell you, one of the biggest hurdles for the federal government in winning this case is the dictionary. It’s a tremendous impediment to them winning this case, because when people say this case is unprecedented, this legislation is unprecedented, what they mean is never before in American history has the federal government ordered citizens to buy a product. That has never happened before.
In all of the Commerce Clause cases--again, even acknowledged by a judge who went the other way from how I would like to see these cases go, in
It was interesting when we had our summary judgment motion—and summary judgment is the hearing where the constitutionality is argued. We did that on Oct. 18. We’re awaiting a judge’s ruling. But the federal government’s lawyer said that “the appearance of inactivity is an illusion.” That’s a direct quote. It was one of the most extraordinary things said during the whole two and a half hours. It’s an illusion. “He just look’s like he’s not doing anything. In fact, he is doing something.” And their hook is: the decision not to participate in the market for health insurance is an activity. The decision is an activity. Of course, if deciding to do nothing is activity and deciding to do something is activity, then, of course, the Commerce Clause reaches everything. Everything.
Jeffrey: Right. That’s because they believe in freedom of choice. But if you go back in concrete terms, back to this family living in
Cuccinelli: Not for schools.
Jeffrey: Right, not for schools. Exactly.
So, you have Mom and Dad. Let’s say their thirty-five years old. They’re making over that $82,000 threshold. The government’s saying, “You’ve got to buy the health insurance.” But they are looking at their income and they say, “We have a high mortgage. We pay incredible property taxes to the [County] of
Cuccinelli: Well, you can make the choice, but we’re going to penalize you financially. You’re going to have to pay “x” number of dollars, without getting health insurance, as a penalty for not following the federal government’s dictate that you get the health insurance.
Jeffrey: And for that to be held as constitutional, eventually the Supreme Court is going to need to say that that family in Fairfax county that decided to pay their mortgage, their state, their local property taxes, and send their kids to parochial school rather than choose to buy health insurance has taken an action that infringes on interstate commerce. That has an impact on interstate commerce.
Cuccinelli: That has an impact on interstate commerce, yes.
Jeffrey: And the court has never done that before.
Cuccinelli: Never. And we hope it doesn’t. And let me tell you what: When you have a case that’s unprecedented like this, you literally span the length and breadth of American history in discussing the meaning of the particular power at issue. And if you go back before 1776, just two years, to 1774, go to the First Continental Congress, delegates from all 13 colonies showed up, signed a document where they “cheerfully acknowledged”--their phrase--“cheerfully acknowledged” the right of the Parliament and the king to regulate their commerce and, in the same document, they boycotted British goods.
So, go across the
Now, go forward 236 years and you see where I’m going. We now have a Congress and a president who believe they can order you to buy a product when King George III and the Parliament of Great Britain, whom we rebelled against, acknowledged that they could not.
Now, Americans endlessly debate the meaning of each part of the Constitution. But one thing that every American should be able to agree on, if you think in terms of Venn Diagrams--I was an engineer before I was a lawyer, so I do things like this--the circle of power that represents federal power under the Constitution must be entirely within the circle of power exercised by King George III and the Parliament of Great Britain. Otherwise, why rebel? And, yet, here we have a Congress and a president who are exercising power that even Parliament and King George III acknowledged they did not have.
Jeffrey: They did not have. Now, given, as you say, that Congress never before has attempted to force individuals in this country to buy anything--
Cuccinelli: Under the Commerce Clause.
Jeffrey: The Supreme Court has never accepted an interpretation of the Commerce Clause that would empower the Congress to do such a thing. You anticipate that the Obama administration fears that, on this grounds, it may lose?
Jeffrey: That this is not sufficient constitutional grounds.
Cuccinelli: Well, remember, when we filed--and we filed 15 minutes after the president signed the bill--when we filed all the newspapers and the pundits and all the people I don’t pay much attention to were all, “Oh, this is frivolous. It’s political. They don’t have a prayer.”
Well, after about a month of discussion about the basis for our position, you started to hear this “tax.” You never heard it on March 23. You didn’t hear it on March 23. But it started to creep in their in the latter part of April, because they realized, “Gosh, our position isn’t as strong as we’ve been declaring that it is.”
Jeffrey: Right. So, now you think--
Cuccinelli: That’s when the fall back position came in.
Jeffrey: They’re going to claim that the General Welfare Clause in the taxing power gives them the authority to do this--using tax to force us to do this?
Cuccinelli: Right. And the “tax” is the penalty you have to pay if you don’t buy the Nancy-approved health insurance.
Jeffrey: Now, isn’t this the same argument--Of course, Roosevelt tried to pack the Supreme Court after Congress passed the Social Security Act. They did that in 1935. He got reelected with a massive majority in 1936, huge Democratic majority in Congress. He then tried to pack the Supreme Court, anticipating, among other things, that the Social Security Act would come up before a court which had thrown out, for example, the Railroad Retirement Act that had this exact same type of rationale.
Jeffrey: And under the pressure of a Congress that may have in fact expanded the Supreme Court by several seats--
Cuccinelli: They were talking about 15.
Jeffrey: Yes. Some Republicans--Owen J. Roberts, specifically, and Charles Evens Hughes who was then the [Chief] Justice--they flipped and they went with Roosevelt and they allowed Benjamin Cardozo, who actually wrote the opinions in the Social Security cases, to say that the General Welfare Clause basically meant whatever Congress said it meant. Which will be the precedent, do you not think, that the administration will point the Supreme Court to if this gets to the Supreme Court. They will point to the Social Security cases and the reasoning of Cardozo?
Cuccinelli: Well, they will, but so far the debate on this has focused on whether or not it’s actually a tax. And it’s an interesting political history here, because the president, of course, famously pounding the podium, you know, “This is not a tax, this is not a tax.” And congressional leaders were declaring it’s not a tax while the bill was going through. And then it passed, we attacked it, and they sent their lawyers into court who said, “It’s a tax! It’s a tax!” And the reason they would plead that it is a tax, not something politicians normally do, is because it’s a hook for a constitutional power for Congress.
Jeffrey: Right, but that argument may make Obama look hypocritical and may make him look even like a liar--
Cuccinelli: Oh, the judge in our case asked the lawyer for the federal government was the president deceiving people when he said it was not a tax? That’s a pretty tough place to be when your client is being essentially questioned through the lawyer.
Jeffrey: But they may concede that the president was lying in order to fit their mandate into a constitutional precedent that already exists, which is the one on Social Security as opposed to the Commerce Clause.
Cuccinelli: And they’re trying to get there, they’re trying to get there.
Jeffrey: That’s where they want to go.
Cuccinelli: But the focus is, if you’re ordered to do something and you don’t do it and the alternative is paying a fine, what is that? It’s a penalty. There is a legal understanding of the word “penalty” that goes back to the 17th century common law and it is a fine you pay when you don’t obey. Taxes are to raise general revenue. Well, if everybody obeys the law, they won’t raise a penny. Not a single penny.
Jeffrey: So, you think you can argue that, on semantical grounds, that because this tax is designed to penalize this person for not doing what the federal government wants them to do rather than raise revenue, then--
Cuccinelli: It’s not a tax.
Jeffrey: Then, it’s not a tax.
Cuccinelli: It’s not tax.
Jeffrey: And so our hope, then, of being protected from the idea that Congress can tell us to buy anything it wants us to buy, that Congress can literally--The CBO report that came out at the time of the Clinton health-care initiative that examined this question of whether or not the federal government had ever ordered Americans to buy any good or service actually pointed out, general, that if, in fact, this were ever allowed to happen, the government, essentially, can mandate your family budget.
Cuccinelli: Yes. That’s right.
Jeffrey: Could mandate a business’s budget without ever enacting a tax.
Cuccinelli: One thing people need to realize about this case: It’s not about health insurance, it’s about liberty. That’s what this case is about. It’s about the outer limits of federal power under the Constitution. You can take health insurance out of this case, and you can put Chevy Equinoxes in, and it’s the same case. And, look, I own a Chevy Equinox, but you don’t want the federal government ordering you to buy a Chevy Equinox.
Jeffrey: They could say, “Mr. Jones, you make $82,000. You’re going to spend $12,000 on health insurance. You’re going to spend $10,000 on your housing. You’re going to spend $10,000 on food. You’re going to send you’re kid to the public school and you’re going to give all the rest of the money to us.” Under the principle they’re trying to establish here, could they do that?
Cuccinelli: Yes, because all those things would affect the economy.
Jeffrey: But given that they’ve already justified, in Roosevelt’s era, Social Security under this exact same rationale and using the same General Welfare language of the Constitution, is it really true, general, that we are down to relying on the semantical distinction between a penalty and a tax to save us from the Supreme Court granting the federal government the power to dictate that kind of control?
Cuccinelli: If we get to that. What you may end up with, you may get a muddy ruling where some on the court would say they have the power under the Commerce Clause so I don’t need to decide the tax question. They may not prevail. They may be in the four, three, two, or one or zero minority--well, it can’t be zero, they wouldn’t write it. But they are both going to have to be addressed if there’s a majority that says that the Congress does not have the power under the Commerce Clause to order you to buy a product.
Jeffrey: So, if you had five justices who said, “The government has the power to order people to purchase things whether they like it or not—
Cuccinelli: Then you’d never get to the tax part of it.
Jeffrey: And three said the Commerce Clause gives them that power and two say the General Welfare Clause gives them that power, the courts could still rule five to four that the government has the power?
Cuccinelli: Well they could, but that isn’t what they did in the Social Security cases. That was an excise tax on work. So it was deemed a tax. And it was not--There’s a great dissimilarity with the case we’ve got now. Of course, the federal government also is burdened with the fact that they didn’t call it a tax in the bill, they called it a penalty. That’s the word they used.
Jeffrey: Now, your initial case, which is now before the federal district court in
Cuccinelli: December. He said he’d decide by the end of the year. I expect to see a ruling some time in the month of December.
Jeffrey: And that ruling will be on the constitutional merits of Obamacare.
Cuccinelli: Yes. This is the final ruling in the case. Every constitutional law case has two rounds. Round one is the motion to dismiss, where the government tries to get the plaintiffs dismissed and they say, “Well, they’re not really injured.” We went through that already in the summer. And then round two is the summary judgment round where the merits of the case are determined. The constitutionality of the law at issue is determined. That’s where we are now.”
Jeffrey: So by New Year’s, we’re going to have a federal judge saying Obamacare is unconstitutional or Obamacare is constitutional?
Cuccinelli: To one of the states, yes.
Jeffrey: And if you lose, you’re going to appeal?
Cuccinelli: Which ever side loses is going to appeal.
Jeffrey: And then it goes to the Fourth Circuit Court of Appeals?
Cuccinelli: Correct. And then to the Supreme Court.
Jeffrey: What’s the timeline for this getting to the Supreme Court?
Cuccinelli: Probably two years.
Jeffrey: You’re taking it there, no matter what?
Cuccinelli: Oh, we’re going all the way through, yes.
Jeffrey: General Cuccinelli, thank you very much.
Cuccinelli: My pleasure.