Cuccinelli: Defeating Obamacare Critical to 'Constitution and Liberty'

Tuesday, 14 Dec 2010 07:25 PM

By Jim Meyers and Ashley Martella

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Virginia Attorney General Ken Cuccinelli tells Newsmax that the defeat of Obamacare and its individual mandate is “critical to the preservation of the Constitution and liberty.”

Cuccinelli successfully argued the case that led to a federal judge’s ruling on Monday that the individual mandate — requiring Americans to buy healthcare insurance or pay a penalty — is unconstitutional.

The Republican attorney general says other parts of the healthcare reform bill regarding Medicaid and Medicare also may be found unconstitutional, asserts that the “incredible uncertainty” about the bill’s ultimate legal status is affecting the entire U.S economy, and rules out a run for the U.S. Senate in 2012.

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Even as Cuccinelli’s victory is hailed as a pivotal point in the fight against Obamacare, he cites another potentially decisive case: the Florida-based suit of 20 states in which arguments will be heard beginning Thursday.

Cuccinelli was elected to his current post in November 2009 after serving as a Republican state senator in Virginia.

In an exclusive interview with Newsmax.TV on Tuesday, he says the key from the ruling in Virginia Monday “is the constitutional findings. There were two: the individual mandate, and the federal government’s fallback argument that the penalty for not buying their health insurance was a tax.

“That’s what they argued, because Congress has the power to tax. They tried to save the statute that way. And this judge, as three other judges before him, rejected that argument as well.”

President Barack Obama and the Democrats in Congress did a “flip-flop” on the tax issue, Cuccinelli says.

“There’s no question that the proponents of the bill argued while the bill was in Congress, ‘This is not a tax, this is not a tax.’ They were emphatic. And then we sued them on the individual mandate and they dumped on us for how unlikely [our case] was to succeed, until they started reading our arguments and a few weeks in they started to realize, ‘Oh my gosh, they might win this case.’ So they started looking for a fallback argument, and the fallback was to argue that the penalty is a tax.

“The judge noted, as other judges have noted, that it’s fruitless, that no judge in the country has ruled in the government’s favor on that. In fact they’re oh-for-four, including with Clinton appointees, Bush appointees. The federal government has lost every single court case on the tax argument. So that’s going nowhere.

“This whole case is going to come down to the individual mandate and whether or not Congress has the power to order us to all buy a product. Realize this isn’t just about health insurance and healthcare, it’s about liberty. Because if they can order us to buy health insurance, they can order us to buy cars, they can order us to buy books, they can order us to buy guns or asparagus.

“There’s no limit as to how this power could be exercised, and it’s critical to the preservation of the Constitution and liberty that we prevail in this case.”
Howard Dean, former head of the Democratic National Committee, has said that the individual mandate is not an essential part of the healthcare reform law and was added only to persuade the health insurance companies to sign on.

Cuccinelli takes issue with that. “Let’s look at the federal government’s own argument, in which they called it the linchpin of the legislation,” he tells Newsmax.

“That was their word, the linchpin. So obviously they think it’s critical. And in their own briefs, they admitted that the insurance provisions of the bill cannot survive without the individual mandate because the insurance industry would collapse. This is their financing mechanism.”

Another critical point looms Thursday, when the 20-state challenge that Florida Attorney General Bill McCollum is leading goes to a hearing in Pensacola. Those states argue that the law’s expansion of Medicaid to 16 million more Americans places an unfair burden on cash-strapped states.

“That Florida case is going to be just as important as this Virginia case,” Cuccinelli says.

“In addition to the individual mandate, which they are attacking, they’re also addressing the Medicaid Medicare mandates under a case in which the Supreme Court said even voluntary programs for the states at some point could have so many burdens for the states that they become coercive.

“If the Supreme Court finds that the mandates on the states under Medicaid and Medicare reach that threshold and are coercive, then they may find those parts of the bill unconstitutional, which obviously are the pieces that cost state governments the most money.

“In Virginia, the cost for the next 10 fiscal years would be a billion and a half dollars. That’s assuming their cost estimates are right, and they never get those right — they always cost more than they originally estimate.”
Other challenges to Obamacare from the states are sure to follow, Cuccinelli adds.

“By the end of January, because of who got elected governor and attorney general around the country in November, over half of the states will be suing as plaintiffs their own federal government because of the federal government’s violation of the Constitution ordering Americans to buy these products.”

Looking ahead at the progress of his case, Cuccinelli says: “A number of weeks ago we began talking to the Department of Justice about their willingness to expedite the case because of the incredible uncertainty that not knowing the outcome has for our whole economy. And we are interested in expediting the case.

“The Department of Justice hasn’t told us whether they’re willing to agree to that or not yet, but there are cordial discussions still ongoing.

“They have 30 days, now 29, to appeal, and that appeal has to be lodged first before any motion to expedite could be filed anyway, so we have a little bit of time here.”

Chris Cillizza of The Washington Post wrote on Monday that the state attorney general’s high-profile victory over Obamacare makes him a shoo-in for the GOP nomination for governor in 2013 or the U.S. Senate in 2012 if he chooses to run.

But Cuccinelli told Newsmax: “I have rejected the notion of running for the U.S. Senate in 2012, and 2013’s far enough off that I don’t really feel that I have to make a decision on that now.”

“For now, I’m just going to be the best attorney general I can be,” he says, adding that he most likely will seek re-election as attorney general in 2013.


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