AG Cuccinelli talks to Bearing Drift about ObamaCare and the Supreme Court

Virginia Attorney General Kenneth T. Cuccinelli, II

Virginia Attorney General Ken Cuccinelli said tonight that he is fairly confident that the Supreme Court will declare the ObamaCare individual mandate unconstitutional but that he cannot predict whether the Court will allow the rest of the ObamaCare law to survive.

In an exclusive interview with Bearing Drift, Cuccinelli discussed the current three-day hearing that began yesterday in the U.S. Supreme Court on the constitutionality of ObamaCare.

Monday’s hearing focused on whether a penalty in the ObamaCare law for failing to purchase health insurance is a “tax.”  If so, the case would have to be dismissed under a 19th century law prohibiting challenges to tax laws until a person actually fails to pay the tax.  (The ObamaCare penalties don’t kick in until 2014.)  The Obama administration argued that the penalties are a tax for purposes of that law but are otherwise not a tax.  (Obama and his administration denied that the penalties were a tax when the bill was pending in Congress.)  Cuccinelli pointed out that even liberal stalwart Justice Ruth Bader Ginsberg made clear that she does not consider the penalty to be a tax.  Cuccinelli said that he expects the Court to find that the penalty is not a tax and to rule that the 19th century law does not apply.

Today, the Supreme Court heard argument on the most controversial aspect of the ObamaCare law, the individual mandate requiring virtually all Americans to purchase health insurance or be forced to pay the aforesaid financial penalties.  Conventional wisdom has been that the four Democrat-appointed justices, Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, will find the individual mandate to be constitutional.  Most observers believe Republican appointees Clarence Thomas and Samuel Alito will find the provision to be unconstitutional, while various observers find some or all of the remaining three Republican appointees, Antonin Scalia, Anthony Kennedy, and Chief Justice John Roberts, to be possible “swing” votes in favor of the constitutionality of the individual mandate.

BACK ROW (left to right): Justices Sotomayor, Breyer, Alito and Kagan; FRONT ROW (left to right): Justices Thomas, Scalia, Chief Justice Roberts, Kennedy, and Ginsburg

Cuccinelli said that he never agreed with the conventional wisdom that Justice Kennedy would be a swing vote on the constitutionality of the individual mandate.  Calling Kennedy a “staunch defender of structural federalism,” Cuccinelli said that Kennedy has consistently voted for and written opinions that looked unfavorably on the kind of expansive view of the Commerce Clause of the U.S. Constitution on which the Obama administration relies in defense of the individual mandate.

Cuccinelli also disagreed with those who considered Chief Justice Roberts to be a swing vote.  He noted that the speculation about Roberts was based in large part on his joining with liberal Justice Breyer in a recent case that gave a broad interpretation of the Commerce Clause in conjunction with the clause of the Constitution allowing Congress to pass laws that are “necessary and proper” to execute the various enumerated powers of the federal government.  However, Cuccinelli pointed out that the opinion in question actually contained a stringent five-point test for any application of the Necessary and Proper Clause in that context and that Roberts is believed by some to have insisted on the inclusion of that test in exchange for his providing the deciding vote in favor of Justice Breyer’s opinion.  Cuccinelli was confident that Chief Justice Roberts will find the individual mandate to be unconstitutional, and today’s hearing reinforced his view.

Of all of the Republican-appointed justices, Cuccinelli was most concerned that Scalia might be a swing vote in favor of the constitutionality of the individual mandate under the Necessary and Proper Clause.  However, Cuccinelli was relieved to hear Scalia, at today’s hearing, point out that this clause requires an act of Congress to be not only necessary, but also proper, and insinuate that the individual mandate is not “proper.”  As a result, Cuccinelli now believes it is likely that a majority of the justices will find the individual mandate to be unconstitutional.

We asked Cuccinelli whether he thought Justice Kagan should have recused herself given that she was President Obama’s Solicitor General (the attorney responsible for arguing the president’s position at the Supreme Court) at the time the ObamaCare legislation was being shepherded through Congress.  Cuccinelli replied that the decision was hers to make and he trusts that she made the decision not to recuse herself because she honestly believes she can be impartial.  Cuccinelli also pointed out that Justice Kagan participated in a decision last year not to accept a fast-track appeal of Virginia’s case challenging ObamaCare’s individual mandate, which demonstrated as far back as a year ago that she would, in fact, participate in hearing cases related to ObamaCare.

Tomorrow’s hearing will focus on whether the rest of the ObamaCare law should remain in effect if the Court declares the individual mandate to be unconstitutional.  Cuccinelli said that he found this issue to be “the most unpredictable aspect” of the pending cases because there are no prior cases that provide meaningful insight on how the various justices might rule on this subject.

We also asked Cuccinelli about the future of Virginia’s challenge to ObamaCare’s individual mandate.  The Virginia case differed from most other cases in that, prior to the passage of the ObamaCare law, the Virginia legislature passed a bill signed into law by Governor Bob McDonnell stating that no Virginia citizen can be compelled to purchase health insurance.  The Virginia suit argued that Virginia had the right to prosecute a case challenging the constitutionality of the ObamaCare individual mandate because the mandate was in conflict with Virginia law.  The U.S. Fourth Circuit Court of Appeals dismissed the Virginia case on the grounds that Virginia lacked standing to bring the action (in other words, that Virginia did not have a sufficient interest in the issue to have the right to prosecute this challenge in the courts).  Cuccinelli, on behalf of Virginia, immediately asked the Supreme Court to accept an appeal of that decision, and the Supreme Court has deferred any decision as to whether to accept the appeal until after it rules on the cases being heard this week.

We asked Cuccinelli whether the Virginia suit raised any issues that are not before the Supreme Court in the pending cases.  Cuccinelli replied that all of the issues raised in Virginia’s suit pertaining to ObamaCare are being considered in the pending cases.  However, Cuccinelli said that it was important that the Supreme Court consider and reverse the ruling by the Fourth Circuit that Virginia lacked standing to seek court enforcement of its own laws.  Cuccinelli described this ruling as unprecedented and said that it was important that it be reversed by the Supreme Court in order to secure Virginia’s right to look to the courts for enforcement of its laws.  He said that if the Supreme Court rules in the pending cases that the individual mandate is unconstitutional and applies that ruling to the Virginia case, the Supreme Court would implicitly overrule the Fourth Circuit’s decision because it would demonstrate that the federal courts did, in fact, have jurisdiction to rule on Virginia’s case on the merits, meaning that Virginia did, in fact, have standing to prosecute the case.