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Healthcare federalization in Supreme Court IV: Cuccinelli comments after day 3

Virginia AG (and recently announced candidate for Governor of VA) Ken Cuccinelli argues VA's case against the Feds' healthcare mandate monstrosity in front of the Supreme Court for three days which began Monday 3/26.
The following is a summary of some of his thoughts after the third and final day of oral argument.

I know this may offend some of our more ideological libertarian orthodoxy purists, but these arguments are important. Anything that moves the balance of power back into the direction of the people, and the constraints of the government back toward the Constitution is a good thing. And, anyone helping to make this happen should be supported. Those who fail to comprehend this help doom the efforts our our good Dr. and his supporters into footnoted obscurity.

Healthcare Case: Day 3 - March 28, 2012

Dear Fellow Virginians and Friends,

Today was the third and final day of the three-day healthcare hearing in the U.S. Supreme Court, and as promised, I wanted to offer you my reflections on today's hearing.

Today's arguments were divided into two separate sessions. The Court heard arguments regarding severability first. In a separate session, the Court heard the States' claim that PPACA's Medicaid expansion represented unconstitutional coercion of the States under the spending power of the constitution. I will address each session in turn.


As those of you who have been following the various challenges know, the severability issue will only come into play if the Court finds a portion of the law unconstitutional. If the Court finds that the individual mandate is unconstitutional, it will strike that portion of the law. When it does so, the Court must also determine if the remainder of the law (or at least certain pieces of it) must also be struck down. To the extent that the Court allows other portions of the law to stand, they are said to have "severed" the unconstitutional portion of the law from what it lets stand as law.

Interestingly, as it did regarding the AIA on Monday, the Court did not just hear from lawyers representing the States and the federal government. The Court appointed a lawyer to argue that if the individual mandate is struck down the rest of the law should be allowed to continue in full force and effect.

The appointment of a lawyer to make this argument was necessary because the federal government has made a significant concession regarding severability. The federal government conceded in the all of the cases prior to the Supreme Court that, if the mandate were held unconstitutional, PPACA's provisions regarding community rating and guaranteed issue (essentially that the insurance companies have to insure someone no matter what problems they have or what risks they face) must also fall because they cannot work without the individual mandate. Interestingly, the first time the federal government made this concession was in our case here in Virginia.

So there were three basic positions argued. The States argued that individual mandate is so central to the law that the whole law must be struck down if the mandate is unconstitutional. The federal government argued that, if the mandate is unconstitutional, the mandate and the community rating and guaranteed issue provisions must be struck down, but the rest of the law may stand. Finally, Mr. Farr, the lawyer appointed by the Court, argued that, if the mandate is unconstitutional, only the mandate should be struck down.

Monday's argument about the Anti-Injunction Act was about legal procedure. Tuesday was about constitutional theory and the relationship between citizens and the federal government. Today's arguments regarding severability were all about practical, real world effects. If the Court finds the individual mandate unconstitutional, what happens next? What's the proper remedy?

From the beginning, it was clear that the justices were interested in the practical effect of striking down the mandate.

The best example of a justice being concerned with the practical effect of a ruling may have been Justice Kagan, who noted that if the mandate is found unconstitutional, but the community rating and guaranteed issue provisions are left in place, that creates a large problem. She said: "Once you say that the insurance companies have to cover all of the sick people and all of the old people, the rates climb. More and more young people and healthy people say, why should we participate, we can just get it later when we get sick. So they leave the market, the rates go up further, more people leave the market, and the whole system crashes and burns, becomes unsustainable."

While it's always dicey to try and guess the outcome from questions at oral argument, all of the justices who asked questions seemed to have this same basic concern over just striking the mandate and leaving the rest of the law in place. However, there seemed to be a difference of opinion as to whether that meant that, in addition to the mandate, just the community rating and guaranteed issue provisions should be struck down or whether the whole law should be struck down.

In asking their questions about severability, all of the justices agreed that the Court must respect Congressional prerogatives, but their questions suggested two very different views of how best to do that.

Some of the justices, particularly Justices Sotomayor and Ginsburg, seemed to suggest that the best way to show respect to Congress was to only strike limited portions of PPACA and nothing else.

Others suggested that, to truly show deference to Congress, the Court would need to strike the entire law because, to do otherwise, would be to leave Congress with a law they never passed or even intended to pass. Justice Kennedy said that if the Court struck down the mandate, but left the rest of the law standing, "we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than . . . striking the whole."

Justice Scalia seemed to echo this view, stating that "My approach would say if you take the heart out of the statute, the statute's gone. That enables Congress. . . . to do what it wants . . . . It seems to me it reduces our options the most and increases Congress's the most."

Justice Scalia also pointed out that the severability issue in this case was unlike any case that had come before the Court previously. He noted that the previous severability cases did not deal with the primary purposes of a statute, but generally, dealt with ancillary issues. However, he said that there is no case where the Court has found the "heart" of a law unconstitutional and left the remainder standing, stating: "This is really a case of first impression. I don't know another case where we have been confronted . . . with this decision."

I caution everyone not to read too much into the questions that justices asked about severability in trying to predict whether or not the Court is likely to find the individual mandate unconstitutional. In its opinion, the Court will only reach the issue of severability if some portion of the law is held to be unconstitutional. Thus, all of the questions about severability necessarily assumed that some provision of the law will be found unconstitutional. So, you can't assume that a justice is leaning towards striking down the law simply because of the way he or she asked a question about severability.


Today's second session dealt with the States' Medicaid coercion argument. The argument is that because States are so heavily invested in the Medicaid program they are forced or "coerced" to accept the Medicaid expansion in PPACA because, if they do not, Secretary Sebelius could stop them from receiving any Medicaid funds from the federal government, causing financial ruin for the States.

The coercion theory is grounded in a few Supreme Court cases, most recently South Dakota v. Dole, which was decided in the 1980s. The issue in that case was the federal government conditioning the States receiving a small portion (7 percent) of the federal highway dollars that they would otherwise receive on States raising their legal drinking age to 21. The Court held that this was a proper use of Congress's spending power because the States could keep their drinking age at 18 if they were willing to forego the federal money.

However, in issuing its decision, the Court noted that seven percent of the federal highway money was a relatively small amount. The Court, relying on cases dating back to the 1930s, noted that there might be a situation where the amount of money involved was so large that the States would be forced into accepting the conditions. If such a situation ever arose, the Court indicated that the law might constitute unconstitutional coercion of the States.

While the theory of unconstitutional coercion is well known, the modern Court has never found a situation where it actually existed. Today's argument was really about whether such a case could ever exist or is the theory of unconstitutional coercion an academic theory that will never have practical effect.

The questions from the justices pretty much covered all of the possibilities. Some of the justices clearly suggested that so long as the States have the right to refuse the federal money, they are not being coerced. Others seemed to suggest with their questions that, given how much States have come to depend on federal Medicaid dollars, we may have finally found a case where the coercion threshold had been met.

Justice Scalia asked the Solicitor General if the federal government could identify even a hypothetical example of what would constitute unconstitutional coercion. Citing a 1911 case about the location of Oklahoma's state capital, the Solicitor General indicated that Congress could not condition the receipt of federal funds on a State moving its capital. Wow.

Chief Justice Roberts also pressed the federal government on the coercion question, seeking examples of what would go too far. However, he was also critical of the States' position, noting that, to some extent, the States reliance on Medicaid is a problem of their own making. Justice Roberts said: "Well, why isn't that a consequence of how willing [the States] have been since the New Deal to take the Federal government's money? And it seems to me that [the States] have compromised their status as independent sovereigns because they are so dependent on what the Federal government has done, they should not be surprised that the Federal government having . . . tied the strings, they shouldn't be surprised if the Federal government isn't going to start pulling them." Again, wow. But this one hurts in part because of the truth in it.

For me, one of the most significant comments on the Medicaid issue came from Justice Alito. As those of you who have followed our efforts from the beginning know, I have repeatedly said that this case is not about health care, it's about liberty. The decision in this case will determine whether federalism - a bulwark of liberty - survives as a tool to preserve our liberty. While noting that the federal government might be correct in its argument, Justice Alito said that, if Congress can condition the receipt of all federal funds on accepting all federal strings no matter what those strings are, "then there is nothing left of federalism."

As I have said before, it is risky to try and guess the outcome based on the questions asked at oral argument (even three days worth of oral argument). The three days of argument have generated lots of things to think about, and I will be reflecting on all of it over the next few days. Once I have chewed on these last three days, I will probably write another Compass giving you my impressions of the whole week taken together.

While I still make no predictions on what the Court is likely to do, I have been cautiously optimistic since we filed the first challenge to PPACA. This week has left me more encouraged about our prospects then I have been to date. I still believe that the positions we have taken, and that our sister States have taken, are consistent with the Constitution and the foundational principles of this great nation.

You can hear my audio summary of today's hearings by clicking here=> .

I'll write on this subject again, but now we have three months to wait until we see the final order.

Finally, please, once again, encourage others to sign up for The Compass. We are trying to get over 5,000 new subscribers this week, and we're well on our way, but we need your help. So, please forward this on to others and encourage them to go to to sign up for themselves!

Thanks so much!


Ken Cuccinelli, II
Attorney General of Virginia

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Here is Cuccinelli's problem

While he asserts states rights on the issue, he believes it would be fine for a states to MANDATE health insurance.
I strongly disagree.

"Hotshot Attorney General Ken Cuccinelli has no trouble with the individual mandate to buy health insurance enacted by Mitt Romney in Massachusetts. The Virginia lawman said the Massachusetts law is perfectly legitimate because of the sovereignty of the commonwealth."

Read more:

Each state has its own Constitution.

While I would oppose the mandates per se, I'm with Cuccinelli on the principle of the matter.
The people of each state should decide, through their representatives, how to run their own affairs in accordance with their own rules, i.e. their state's Constitution.

Television: Why do you think they call it "programming"?

An individual mandate is incompatible with a "republican" form

of government which is guaranteed to each State by the Constitution.

No State can change its government to a Democracy, Social Democracy, Dictatorship, Oligarchy, Theocracy, etc. The republican nature of its government cannot be abandoned. Such form is guaranteed to the State.

It isn't a question of what the People want either. If they truly want to change their form of government, in this case to a Social Democracy, then they must secede from the Constitution. (though not necessarily from the Union - yes, those are two separate things.) In such a case, this State would have no representation in the House or Senate, would have no Electoral College votes, and of course receive zero money from the Federal Treasury. Their status would be similar to that of New York, Virginia, North Carolina, and Rhode Island between the time the Constitution was formally ratified by New Hampshire and the time they ratified themselves. (technically, being party to the Articles of Confederation, they were part of the United States of America, but would have taken no part in its new government)

Each state does, but under

Each state does, but under the Constitution, Amendment 14, Section 1, it says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Ipso facto, states are not allowed to force people to buy anything because that would be abridging people of property and liberty. This is of course how it is supposed to be, not necessarily how it is.

The end of that clause will get you every time. "subject to the

jurisdiction thereof" does not mean subject in some respect, or in some cases or in some issues, it means "completely subject."

The citizenship spoken of in that amendment does not apply to all Americans and is in essence a "Federal" citizenship. (yes, you are considered a citizen of the State you reside it, but that citizenship comes from Congress, not the State - this is different from Citizens born in a State)

It most immediately applied to the recently freed slaves as the States had provisions which excluded them from natural born citizenship and Congress had passed no law of naturalization to include them. (which it could have done)

Today, it applies to people born in any Territory or other place outside of one of the several States and subsequently naturalized. These people are 100% subjects of Congress and enjoy no protections of Federalism, have very limited privileges granted them by Congress, and enjoy the protections of the Bill of Rights only insofar as Congress has been gracious enough to extend it to them. (see Slaughterhouse cases)

If I were giving anyone advice, I would strongly caution against claiming protection under the 14th amendment for anyone born in one of the several States.

There is in fact, an argument using the equal protection clause which gives justification for the individual mandate since Congress is responsible for the welfare of its subjects.

Quite right...

Of course, the states are absolutely rife with doing this very thing. Auto insurance, automobile registration, driver licensing and, in California, mandatory smog testing just to name a few.

All of those however are conditional upon the choice of

driving and/or owning a licensed vehicle in those States.

They are not mandated to every man, woman and child who exists within their borders.

The health insurance mandate cannot be "opted out" of. The requirement falls on a person merely if they are alive.

You can avoid buying car insurance if you don't own/drive a car. You can't avoid buying health insurance under the PPACA at all.

(note, many if not most states do NOT require you to purchase auto insurance. They require you to provide "proof of financial responsibility" of which an indemnity policy - aka insurance, is only ONE method of doing so. Other methods may include recording a bond with the State in a certain amount, or filing proof of a certain net worth.)

If memory serves correct,

If memory serves correct, Sotomayor is deep in Clinton's pocket after she was given that SCOTUS seat for not indighting a notoriously corrupt cororner that let suspicious deaths (witnesses murdered, boys bodies found dumped on train tracks near the cocain airport, 2 bullets to the head "suicides"), slide during Bill's governor stint during the CIA Cocaine Mena travesty.

Now it's about the Constitution and the fight to defend it.

Clinton is no longer president, and he and his wife were not

pushing this bill.

They were pushing complete socialization of the medical industry. Doctors and other HC professionals would have remained "private" in name only. In all practical effect, not only would THEY be completely controlled by Congress, in order for "Hillary Care" to work, EVERYONE would have to be controlled by Congress. (there was a provision which would have dictated the distribution of incomes within a certain region, you would have had to get permission to hire, fire, give raises, issue pay cuts, move, or change jobs or else this "balance" would have been disrupted and the law would fall apart)

What you see now - the "individual mandate" was the brainchild of neo-con despot wanna be Newt Gingrich as an effort to stave off the larger communization of America under Hillary Care.

I guess my point was firstly

I guess my point was firstly the connection or debt between Hillary's party and the Supreme Court Justice. If you've read anything about the Clintons and I'm sure you have, you'll know that the Real trigger-man in that relationship is Hillary. She's a real piece of work. Of course she had her own agenda but realizing that dog wouldn't hunt she would, in my appraisal of her, do anything to insure the party and her Homeboy Barry would come out ahead. She's shown that I think over and over again during the past several decades. If her party or it's leader's agenda is threatened, I don't think there's much she would draw the line at. She was my first suspect when I heard Breitbart had been silenced as she's been confronted by whistle-blowers before and it never ends well for the whistle-blower.

Now it's about the Constitution and the fight to defend it.

I understand what you mean, and I don't put anything past her


I just think she's more selfish than that, and I don't think she has necessarily any love for BHO or the Democrat party.

I think she sees them as means to an end, just as she saw Bill as a means to an end.

I guess we'll have to wait and see just how deceitful and dastardly she really is...