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On the Record - Ken Cuccinelli

On the Record - Ken Cuccinelli

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Published by Katie Watson

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Published by: Katie Watson on Jul 03, 2012
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On the Record:Q&A with Virginia Attorney General Ken Cuccinelli
You’ve made proving the unconstitutionality of theAffordable Care Act a pinpoint of your time in office as attorneygeneral. Do you feel vindicated by Thursday’s ruling with thecommerce clause and limits of federal funding authorityclarified? And do you think the time and money spent fightingthe Affordable Care Act was worth it for Virginia?
 Answer: Well it didn’t take a lot of money, actually. And we are goingto save. … I hadn’t even thought about it until you said it that way.The payoff, I should calculate that payoff. … Assuming we do notundertake the Medicaid expansion, we’ll have spent something like$10,000 or $20,000 to save $200 million — per year.
Q: Then do you attribute the striking down of the Medicaidclause to Virginia’s lawsuit?
A: No. No, no. Of all the peculiarities, that was kind of a throw-inargument by the other states. It was thought to be the longest of longshots. But at the same time, nobody seriously thought the court — anycourt — would uphold this mandate under the taxing power. And infact, no court did except the Supreme Court.When I was in the court room on Monday and Tuesday (in March) of the oral argument, both Monday and Tuesday, Justice (Ruth Bader)Ginsberg, she did what sounded like reading a statement. And I saythat because, if I remember correctly, she said nearly exactly thesame thing both days, about what a tax is and what it isn’t. And Icame out of there with a very clear impression that there was no wayon God’s green earth, she was going to find it a tax. And I think shefound it a tax simply because that got them the five votes to upholdthe law. And I think so far, that hasn’t been discussed anywhere, inpart because you have to go back and work and look at the transcriptand look at what she said. I was taken aback on Monday, meaning theMonday of the oral argument, with how definitive she was about that.And then she came back on Tuesday and said it again. So that’s one of the things I want to go take a look at.Nonetheless, on the constitutional level, the constitutional defender inme does feel like we did the right thing. And that we protected theinterests we set out to protect. But we ended up with a situation wherethe Chief Justice (John Roberts) just blew off the doors on the taxing
power. So they (Congress) really can charge you dollars for anythingyou want to do if you don’t do it.On the constitutional level, the constitutional defender in me does feellike we did the right thing in that we protected the interests we set outto protect. But we ended up with a situation where the chief justice just blew the doors off the taxing power. So they really can charge youdollars for anything they want to order you to do if you don’t do it. Andthat’s an extraordinary erosion of liberty, if the Congress has the gutsto use it.And this is sort of the saving grace. … The taxing power is the part of the Constitution that let’s face it, senators and congressmen are mostafraid to use. This whole scheme they set up on this health care lawwith the mandate, it was all a great big effort to avoid calling it a tax.And if it had been a tax, if they’d been running it as a tax bill, it wouldhave never passed — would have never passed. And so there’sunfortunately, the power now exists for the federal government to doa whole lot of things before. But I have a funny feeling, just judging byour first oh, 236 years of history and remembering that the Americanrevolution began over taxes … I don’t know that we’re going to seethis be used a lot in the future. If it is, we’ll be vigilant aboutcontaining it.The chief justice’s convoluted opinion even limited the taxing powerthere. For instance, he accepted it as a taxing power in this instancebecause the penalty you had to pay does not, does not rise to the levelof what it would cost to actually replace the health insurance, whichyou know, is a squirrely way to do that. He said if it did that, it wouldbe punitive, it would be a penalty, it wouldn’t be a tax, and hewouldn’t have upheld it as a tax.… It’s one layer of confusion after another in the tax part of thisopinion. And I’ll tell you, the same person who wrote the commerceclause opinion … who wrote the spending clause portion of this opinion— it’s like Dr. Jeckle and Mr. Hyde when you get to the taxing powerportion. It makes no sense at all. There’s no consistency to thedifferent portions of this opinion at all.
 Q: Given your law background, I’d imagine that makes youwonder what went on inside the courtroom?
A: I can’t come up with a legal reason for what he (Chief Justice JohnRoberts) did. I mean, nothing that traces itself back to the founders’ 
vision when they wrote the Constitution. I don’t really want tospeculate on his motives, but I don’t see anything legal there. I mean,I don’t know, maybe he thought he was preserving the reputation of the court or something, but in fact, what he ended up doing to it isdoing it great damage. Because I think the strong sense out there is and not just among those of us who wanted to have a complete win —but among people on all portions of the spectrum, that this was not alegally based decision, that there were other motives there. And …what’s unique about the Supreme Court is they’re not supposed tocare about all the other considerations. It’s just what is the law, andhow does it apply to this situation? And it’s frankly a little bit difficultto reconcile that approach to the chief justice’s opinion.
Q: Do you think this ruling will diminish people’s faith in theSupreme Court?
A: “Oh, I think it already has. I think it already has — prettyimmediately. It’s rare that the court gets the kind of anticipatoryattention that this did, so people were formulating their opinions andso forth. And it’s not like you can just go recover.It’s like telling your parents a lie. Once you’ve told the one, you knowthey love you and all and they want to trust you, but they’ve got totrust you knowing that, at some point you were capable of lying. “And so, the faith of the American people in the Supreme Court has tobe earned back. And it doesn’t happen overnight. That literally takesyears and decades. And I think the Chief Justice (John Roberts) hasdone, not irreparable damage to the court, but damage that will befrankly hard if it can ever be overcome.” 
Q: Obviously, you are running for governor next year. Whenthis November and its elections pass, and the time comes foryour race, do you think Virginians will remember you as theguy who spearheaded the fight against Obamacare, or as theguy who lost the fight?
A: “People are complex. They’re not going to boil it down to one thing.Certainly health care has been a big deal. Speaking more broadly, ourefforts to push back on the federal government in the areas wherethey have been overreaching has been a central part of our time here.People are going to judge whether they appreciate my pursuit of thosegoals, or whether they do not. And that’s what elections are about —they’re partly about accountability.” 

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