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Cuccinelli: Making Virginia Look Foolish

by: Elaine in Roanoke

Tue Mar 23, 2010 at 10:29:53 AM EDT

Virginia attorney general Ken Cuccinelli is insisting that he will file suit against the federal government because the recently passed health reform law requires citizens to either purchase health insurance (with or without government assistance, depending on income) or pay a fine.

According to our legally-challenged attorney general, the federal government has no constitutional right to insist that individuals purchase insurance.

Cuccinelli said in a statement released by his office. "We contend that if a person decides not to buy health insurance, that person - by definition - is not engaging in commerce, and therefore, is not subject to a federal mandate."

What does Kookinelli think about Virginia's mandate that drivers either purchase auto insurance or pay a large fee into the state "uninsured motorist fund"? Isn't that government insisting I and every other person who drives buy insurance?

Elaine in Roanoke :: Cuccinelli: Making Virginia Look Foolish
In the General Assembly session just finished, the legislators passed a bill stating that Virginia would not accept any mandate concerning the purchase of insurance. Gov. McDonnell, who must be as constitutionally challenged as his fellow rightie Cuccinelli, said the federal law may not override Virginia's prohibition against an insurance mandate.

"If it's not permissible under the United States Constitution's commerce clause to mandate that upon the states, it doesn't matter what kind of federal preemption language you put in there, it's still not going to be upheld," said McDonnell.

Let's see...Here is a little something from the U.S. Constitution:

Article VI, Clause 2: This clause establishes the constitution itself, federal statutes, and U.S. treaties as "the supreme law of the land." These are the highest forms of law in the American legal system. Thus, the Constitution mandates that judges uphold them, even if state laws or constitutions conflict with them.

Now, McDonnell and "Kookinelli," along with their fellow travelers in Texas and a couple of other states, contend that the constitution's "commerce clause," giving Congress the right to regulate interstate commerce doesn't extend to a mandate to have health insurance coverage. They are forgetting another part of the constitution, the Preamble:

"We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

I can think of nothing that promotes the "general welfare" more than near universal access to health care.

State Sen. John Edwards (D-Roanoke) called Cuccinelli's planned lawsuit frivolous and politically motivated. "I would be amazed if a court actually took up the issue...I think he's wasting taxpayer dollars by filing suit."

According to the Roanoke Times, Timothy Jost, a professor at the Washington and Lee University School of Law, dismissed the planned lawsuit as "political grandstanding." Jost said Virginia lacks standing to challenge the federal law. He said any challenge to the individual mandate provision is premature because the requirement won't take effect for four years. Jost added that Cuccinelli would have to show that Virginia is somehow injured by the federal health care bill.

Since the requirement to purchase insurance hasn't taken effect yet, there could be no damage to Virginia or to its citizens at present. Thus, this is certainly political "grandstanding" by the attorney general and the governor. It's an orchestrated attempt to play to their party's "Tea Pot" radical fringe.

This action by two of the top Republicans in the state simply punctuates the point made recently by David Frum, a former speechwriter for George W. Bush and a conservative Republican:

"For the most part...opponents of reform didn't even pretend to engage with the reality either of the existing health care system or of the moderate, centrist plan - very close in outline to the reform Mitt Romney introduced in Massachusetts - that Democrats were proposing. Instead, the emotional core of opposition to reform was blatant fear-mongering, unconstrained either by the facts or by any sense of decency."

Frum went on to call the refusal to join in meaningful debate on this most important issue, the "Waterloo" for his GOP.

Definition of the "Tea Pot Party": A group of angry vessels spouting off steam to no effect, while being heated up by bigotry, fear, racism, zenophobia, and willful ignorance.

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Cuccinelli the Hypocrite
Check out this information from Ben at Not Larry Sabato:

In Virginia, full time state employees and part time "classified" employees are eligible to buy into a taxpayer subsidized health care program.  For part time employees to be eligible, they must work at least 32 hours a week.  As Attorney General, The Cooch of course is eligible for these benefits...prior to January, Cooch served for almost eight years as a State Senator.  Legislators would not usually be eligible for state health insurance...but they exempted themselves from this provision and gave themselves the right to buy into state health care at the cost of full time...state employees.

So when given the "public option" to insure his family through the state health insurance program, The Cooch chose to do so instead of insuring his family through his law firm.  Why would he do this?  The General Assembly program allows members to enroll their families for $105 per month- or $1,260 per year.  

According to the Kaiser Family Foundation, these benefits would cost about $13,375 for a family policy for four on the open market...The Cooch would have an even more expensive policy with his seven children.

Thanks, Ben, for unmasking the hypocrite.

Rep. Bobby Scott's Point
Rep. Bobby Scott (D-3rd) brings up an obvious point that goes right over the head of our legally-challenged governor and attorney general: If the GOP wants to say that the federal government cannot regulate health insurance under the commerce clause, they will also have to take on the legality of Medicare.

After all, everyone who pays Social Security taxes also pays a Medicare tax so that they can participate in Medicare at retirement. Aren't they being "forced" to purchase health insurance that they will receive at age 65?

Ah, the third rail...

when does this guy begin to do his job that he was elected to do? So far all we've seen is his political kabuki, frivilous lawsuits-or threats of them. This latest lawsuit will never see the light of day. He will be out of office when this all takes effect anyway.

He's just tryng to score political points. Useless.

Someone please
set up a website with a counter on it that tracks how much of Virginia's money Cooch has wasted. In big numbers with facts cited on a separate page. No glossy look to it. It can be as plain as this cite or this one: http://didtheypasshealthcarere...


The Kook's Argument...
Lies in the 10th amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Constitution does not delegate to the federal government the right to mandate the purchase of health insurance, nor does it prohibit the states from making such laws.  So its OK for states to require the purchase of auto insurance, but not OK for the feds to require health insurance according to his thinking.

I sincerely hope that the courts refuse to take up the suit, otherwise I'm afraid that it'll hit the Supreme Court and we all know how they'll vote.

The Commerce Clause has been interpreted
as allowing Congress to regulate considerable activities that substantially affect interstate commerce, and there is quite a good argument that Congress's power includes the perogative to require people to maintain insurance so they don't end up screwing up the economy by getting treatment as charity.

Whether the Courts end up taking the matter up now, or in 2014 is a good question, but I have little doubt that they will take it up eventually.

And if they find against the health insurance mandate, it is another interesting question as to how much of the new health care law is severable for constitutional purposes.

But as interesting as these questions are, one thing is quite clear: what Scotus wills, will be, and there is precious little we poor shlubs can do about it (other than pray that Cooch is blessed with the opportunity he craves to present the oral argument on behalf of the malcontented states).

Republicans will not get the political charge they hope to garner from these judicial challenges and their vain cries of "repeal!"  

[ Parent ]
Questions Have Been Settled
These questions have already been adjudicated before both a conservative SCOTUS and a liberal one.

Social Security was attacked in the courts on the basis of its constitutionality. The conservative court that FDR hated enough to want to pack ruled in favor of the government under the ability of the government to "promote the general welfare."

The Voting Rights Act was fought by using the 10th Amendment. The Warren Court ruled it was legal.

I don't think the ideas are even interesting. They are old, stale, and hopefully will fail again.

I have written a diary about the history of those cases. I'll post it later today.

[ Parent ]
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