Friday, June 28, 2019

From the Archives: Attorney General Ken Cuccinelli says Obamacare decision is 'a win for liberty'

Attorney General Ken Cuccinelli says Obamacare decision is 'a win for liberty'
June 28, 2012 11:30 AM MST

In a press conference today, Virginia Attorney General Ken Cuccinelli said that the Supreme Court’s health-care decision was a “victory for individual liberty” and that his initial reaction to the ruling was more negative than it ought to have been.

Ken Cuccinelli Obamacare SCOTUS health care commerce clause
Speaking to reporters in Richmond and via telephone conference call, Cuccinelli called the ruling “a win for liberty” and explained that for the first time in 85 years, the Supreme Court had set “an outer limit” on the expansion of federal authority through the Commerce Clause.

He said that by its 5-4 ruling on the limits of the Commerce Clause, the Court had put in place a “critically important containment of federal power” and that in the parts of the ruling dealing with Medicaid, the justices had for the first time since the New Deal said that Congress has limited power to compel states to act through its spending authority.

Politics and legislation

Moreover, Cuccinelli argued, by defining the individual mandate as a “tax,” as Chief Justice Roberts did in his majority opinion, the Court opened up political challenges to the law because Congress’s taxing authority is the most accountable and sensitive of its powers to popular will.

By calling it a tax, he said, the Court (specifically the Chief Justice) removes the political cover for those legislators who claimed not to have voted for a tax increase. They can no longer go back to their home districts and say they did not vote for a tax, he said, and thus they will be subject to the judgment of voters on Election Day.

Given that, Cuccinelli predicted that, with the impending elections this November, the ruling will show the critical role that voters play in “ensuring that their liberties are preserved.”

‘Bipartisan failure’
As a policy matter, Cuccinelli said, health-care legislation has been “a bipartisan failure” and that the Affordable Care Act is such a “bad policy” that even the people who supported it are backing away from it, as a constitutional matter, “individual liberty has been substantially preserved in this case.”

He also noted that, apart from the aspects of the law addressed in the decisions delivered by the Court today, there are still matters about the ACA that continue to be litigated. He gave as an example the lawsuit filed by the Catholic bishops with regard to contraceptives.

Federalism preserved
Cuccinelli said that the justices came to their decision in an “unlikely way,” but that “if there had been five votes to compel us into commerce, federalism would have been dead,” pointing out that Justice Ruth Bader Ginsburg, in her dissent on the Commerce Clause part of the ruling, claimed that the “Commerce Clause power is plenary,” that is, unlimited.

Wrapping up, the Virginia Attorney General said that upon reflection, his analysis of the Supreme Court’s health-care ruling is more muted than his initial reaction was, and that “by and large” the decision preserved individual liberty.

Publisher's note: This article was originally published on on June 28, 2012. The publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to since April 6, 2010. It is reposted here without most of the internal links that were in the original.

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