Virginia Attorney General Ken Cuccinelli predicted in an exclusive interview with Newsmax.TV that Thursday’s Supreme Court ruling on Obamacare is likely to result in more litigation from businesses over the divisive individual mandate.
“I think there will be some litigation around that point, particularly if any of the businesses that are fined $3,000 per employee can point to health insurance policies, say for individual employees, that they could buy in that price range,” Cuccinelli anticipated. “They could argue this is not a tax and so this — as it applies to my business — is not constitutional.”
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While Cuccinelli initially called the ruling a “a dark day for the American people, the Constitution, and the rule of law," he later told Newsmax.TV upon further reflection, “I got a lot more optimistic.”
He pointed to the court’s ruling with respect to Medicaid as a partial victory for the states, which brought the landmark case that led to the high court ruling.
“For the Commonwealth of Virginia and for all the states, it’s the part that hits our budgets the hardest. And this is the part we won,” he insisted. “The bill cannot be used to compel Virginia to massively expand its Medicaid program with the threat of taking away all our other Medicaid money. The Supreme Court said that was unconstitutional coercion and it went beyond what’s allowable under the spending power of the Constitution.”
Cuccinelli said that the Medicaid portion of the ruling amounts to a court-imposed spending limitation on Congress. “That’s the first time since the New Deal that any limit whatsoever has been put on the federal spending power. So we did very well there,” he observed.
While the court allowed the law to stand on the basis of it being a tax, that’s also a double-edged sword for the administration.
“You have to pay about a $700 penalty if you don’t buy their government-approved health insurance and $700 is never going to buy you a health insurance policy,” according to Cuccinelli. “If they raised the amount of the dollars you got to pay to the point where it would equate to buying a health insurance policy, then it would not be a tax for constitutional purposes it would be a penalty. And the easiest way that I’ve found to think about that is if it’s like restitution to the government, then it wouldn’t be a tax, and it couldn’t be upheld.”
In the future, every legislator that votes for a similar bill may also be held to higher public scrutiny based on Thursday’s ruling.
“There’s no type of bill that Americans hold their elected officials more accountable for than increased taxes,” he said. “Remember how they passed this thing. They screamed all the way to the bank, ‘This is not a tax. This is not a tax. This is not a tax.’ And now the Supreme Court has said, in fact, that it is. So that gives us all sorts of protections with Congress and the federal government.”
As the Chief Justice pointed out, there’s no compulsion for companies and individuals that don’t comply, according to Cuccinelli.
“Because there’s no compulsion, you can’t go to jail for instance, and because there is a reason for you to just pay the penalty and not buy health insurance, that’s why he called it a tax for constitutional purposes,” Cuccinelli added. “You don’t have —under the structure of this bill — much incentive to go buy their government-approved health insurance. You’re better off just paying the penalty.”
Cuccinelli believes that some members of Congress were not being honest with the American people when they insisted that the individual mandate was not a tax to get the healthcare law passed.
“Others just didn’t know what they were talking about, frankly. It’s a combination of the two,” he explained. “The Supreme Court has provided us a degree of clarity in this area, but they did it by reading the tax power fairly broadly. This is not a new expansion of federal power in any way, which is why I feel like we’ve won on the principles; we’ve won on the Constitution. But we lost on the healthcare policy.”
He added that Virginia is keeping its options open related to further litigation based on the potential impact.
“We have to make the decision whether to pursue an exchange or not and that not only impacts on Virginia’s government, but also potentially on private sector participants, businesses in Virginia,” said Cuccinelli. “If we do not pursue an exchange, there is an argument to be made that they cannot be penalized — the $2,000 or $3,000 penalty and obviously, we will want to hear from our business community on that — as to which course they might prefer. But it’s also a policy decision for the governor and the legislature.”
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