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On the Record: Q&A with Virginia Attorney General Ken Cuccinelli Question: Youve made proving the unconstitutionality

of the Affordable Care Act a pinpoint of your time in office as attorney general. Do you feel vindicated by Thursdays ruling with the commerce clause and limits of federal funding authority clarified? And do you think the time and money spent fighting the Affordable Care Act was worth it for Virginia? Answer: Well it didnt take a lot of money, actually. And we are going to save. I hadnt even thought about it until you said it that way. The payoff, I should calculate that payoff. Assuming we do not undertake the Medicaid expansion, well 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 Medicaid clause to Virginias lawsuit? A: No. No, no. Of all the peculiarities, that was kind of a throw-in argument by the other states. It was thought to be the longest of long shots. But at the same time, nobody seriously thought the court any court would uphold this mandate under the taxing power. And in fact, 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 say that because, if I remember correctly, she said nearly exactly the same thing both days, about what a tax is and what it isnt. And I came out of there with a very clear impression that there was no way on Gods green earth, she was going to find it a tax. And I think she found it a tax simply because that got them the five votes to uphold the law. And I think so far, that hasnt been discussed anywhere, in part because you have to go back and work and look at the transcript and look at what she said. I was taken aback on Monday, meaning the Monday of the oral argument, with how definitive she was about that. And then she came back on Tuesday and said it again. So thats one of the things I want to go take a look at. Nonetheless, on the constitutional level, the constitutional defender in me does feel like we did the right thing. And that we protected the interests we set out to protect. But we ended up with a situation where the Chief Justice (John Roberts) just blew off the doors on the taxing

power. So they (Congress) really can charge you dollars for anything you want to do if you dont do it. On the constitutional level, the constitutional defender in me does feel like we did the right thing in that we protected the interests we set out to 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 you dollars for anything they want to order you to do if you dont do it. And thats an extraordinary erosion of liberty, if the Congress has the guts to use it. And this is sort of the saving grace. The taxing power is the part of the Constitution that lets face it, senators and congressmen are most afraid to use. This whole scheme they set up on this health care law with the mandate, it was all a great big effort to avoid calling it a tax. And if it had been a tax, if theyd been running it as a tax bill, it would have never passed would have never passed. And so theres unfortunately, the power now exists for the federal government to do a whole lot of things before. But I have a funny feeling, just judging by our first oh, 236 years of history and remembering that the American revolution began over taxes I dont know that were going to see this be used a lot in the future. If it is, well be vigilant about containing it. The chief justices convoluted opinion even limited the taxing power there. For instance, he accepted it as a taxing power in this instance because the penalty you had to pay does not, does not rise to the level of what it would cost to actually replace the health insurance, which you know, is a squirrely way to do that. He said if it did that, it would be punitive, it would be a penalty, it wouldnt be a tax, and he wouldnt have upheld it as a tax. Its one layer of confusion after another in the tax part of this opinion. And Ill tell you, the same person who wrote the commerce clause opinion who wrote the spending clause portion of this opinion its like Dr. Jeckle and Mr. Hyde when you get to the taxing power portion. It makes no sense at all. Theres no consistency to the different portions of this opinion at all. Q: Given your law background, Id imagine that makes you wonder what went on inside the courtroom? A: I cant come up with a legal reason for what he (Chief Justice John Roberts) did. I mean, nothing that traces itself back to the founders

vision when they wrote the Constitution. I dont really want to speculate on his motives, but I dont see anything legal there. I mean, I dont know, maybe he thought he was preserving the reputation of the court or something, but in fact, what he ended up doing to it is doing 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 a legally based decision, that there were other motives there. And whats unique about the Supreme Court is theyre not supposed to care about all the other considerations. Its just what is the law, and how does it apply to this situation? And its frankly a little bit difficult to reconcile that approach to the chief justices opinion. Q: Do you think this ruling will diminish peoples faith in the Supreme Court? A: Oh, I think it already has. I think it already has pretty immediately. Its rare that the court gets the kind of anticipatory attention that this did, so people were formulating their opinions and so forth. And its not like you can just go recover. Its like telling your parents a lie. Once youve told the one, you know they love you and all and they want to trust you, but theyve got to trust you knowing that, at some point you were capable of lying. And so, the faith of the American people in the Supreme Court has to be earned back. And it doesnt happen overnight. That literally takes years and decades. And I think the Chief Justice (John Roberts) has done, not irreparable damage to the court, but damage that will be frankly hard if it can ever be overcome. Q: Obviously, you are running for governor next year. When this November and its elections pass, and the time comes for your race, do you think Virginians will remember you as the guy who spearheaded the fight against Obamacare, or as the guy who lost the fight? A: People are complex. Theyre not going to boil it down to one thing. Certainly health care has been a big deal. Speaking more broadly, our efforts to push back on the federal government in the areas where they have been overreaching has been a central part of our time here. People are going to judge whether they appreciate my pursuit of those goals, or whether they do not. And thats what elections are about theyre partly about accountability.

And part of the decision by any voter in deciding whether to vote for me for governor next year is going to be their evaluation of how Ive done as attorney general, and that is totally legitimate. I completely accept that. I encourage it its a good thing. By and large, the damage that this federal overreach and the legal questionability of so much of it unfolds in peoples lives and in the economy. I think theyre seeing the value of us fighting back, and I think a lot of people appreciate that there is someone that will actually fight for them. Its amazing how many people will run for office, do all that work. And simply take whatever beating comes. And we dont do that. We fight for the Constitution, we fight for our Virginians, and were going to keep doing that. In the constitutional area, you are right. Thats been the part the most attentions been paid. But weve also been the first office frankly thats even been willing to take on human trafficking. We have ramped up the assault on child pornography. And we have done more than ever in increasing ... what was being done against gangs. And more than anything else in the areas of putting resources into the attack on health care fraud. We have ramped up the attack on health care fraud more than any other attorney generals office. In May, we got the largest health care fraud ruling ever by a state, by any state, anywhere, in the history of the United States. 12 minutes - Weve had a lot of success to point to in other areas, and I dont if youd told me this is where wed end up in health care and in our federal fight, wed have undertaken them anyway. I mean, its very important to do this. I mean, you cant sit idly by and just let the sappers undermine the Constitution. The first thing in my oath of office is to defend the Constitution, and we take that very seriously. Have done it for the first two and a half years, and were going to do it the next year and a half. Q: Hopefully, people understand why the health care ruling matters for their lives. But, why should people care about the outcome of the Affordable Care Act? A: Lets just throw it into the mix of everything else at the federal level. They have taken on a massive new spending program when theyre bankrupt already. I mean, the federal government cant afford this. Now, having said that, most of the burden falls on the private sector at a time when weve had long-term were now in four years

of economic stagnation. That strikes me as just economically foolish. And it opens the door for Mitt Romney. One of the distinctions hes making is hes pointing back to 2009 and saying hey look, this guy got elected in the middle of a terrible economy, and the first thing he did was the stimulus bill that was really just stimulating government and nobody else. And then turned to this health care monstrosity which, whatever you think about health care, is certainly economically damaging. And Mitt Romney makes the case, Im not going to do that. On day one, my job will be the economy and getting it going again. The president has given his competitor here Mitt Romney, a huge opening, and Romney is a smart guy. Hes taking full advantage of it not just from an opportunistic standpoint, but anybody who has observed Romney over many years knows, he is a smart guy and he is about getting an economy going again and has got an awful lot of experience working to do that. So theres an opening there. And the costs are associated down to the individual level with this health care monstrosity really just get worse. And they get worse. And part of the problem is more systemic and this is just the worst example of it. For 47 years, going back to the Great Society, our federal government has had one, and only one, answer to every challenge in health care and that is more government. As Dr. Phil would say, Hows that working out for you? We need to go in the other direction. I dont know how many times we have to prove this to ourselves before, as a nation, we get it straight. But this is the worst impairment of the notion that we might have markets in health care, probably ever. Now let me give you an example. Next time you go to the doctor for whatever, get a checkup, whatever. Go to the desk, tell them you want to pay cash. And ask them how much it costs. And the odds are, they dont even know the answer to the question. They dont even know. Because there are no prices in this health care, quote, market, unquote. And I use quotes around the word market because the most fundamental piece of information in markets is prices. That is how distorted we are now. That is how far from letting consumers feel and see and react to the impact of prices in their lives and on their businesses. And that has had tragic consequences for our health care market. We spend more of our economy on health care than virtually any other nation in the world well, free nation. And we do have the

best health care quality in the world, but it comes at an incredible price, which prices many people out. This is where so much of our uninsured problem comes from, is we have reduced the access by allowing our prices to rise like crazy. I frankly think that we need to focus very hard on bringing down prices as the means to generating access for more and more and more Americans to health care and health insurance. And now, Im finally and this is a bipartisan complaint Im finally hearing Republicans the last couple years focus on this. Certainly, Mitt Romneys focused on it. We can look back 20 plus years on the political stagnation weve had over transportation, you know? The one shot we had at any kind of compromise is the 2007 deal and Tim Kaine amended that bill and made it nakedly unconstitutional. And our Virginia Supreme Court found it unconstitutional 7-0. And weve had that kind of policy stagnation on health care at the federal level for a long time. And one outcome of this that I hope to happen is if we stop this nonsense at the federal level of these 2,000-page bills. What we need are 20, 10-page bills. Lets have one bill that does nothing to deal with purchasing health insurance across state lines. Nothing. Vote it up or down. And I guarantee itll pass at 70 percent-plus approval bipartisan approval. You know, this isnt Republican and Democrat, a lot of it. Doesnt has to be, it isnt, if people would focus on some basic items that can work in the marketplace to help us get to a marketplace. Equalizing tax treatment for individuals with corporations. Why should corporations have a huge advantage over individuals in the tax treatment of health insurance? And so much of what you heard in the run-up to the Obamacare passage was, affordability. Job lock. And, a big part of that is the unequal tax treatment of health insurance purchasing. We can make it affordable virtually immediately by equalizing that treatment, and frankly, encouraging companies to let individuals buy. Go that route. Open the doors to your employees and so forth, but give them the money and let them buy it. And let the individuals deduct it from their taxes, which is the federal policy change we need. There are so many options like that that make sense and would have broad bi-partisan support and would put patients and consumers more in control of their health care, and more aware of their choices. How their choices impact quality itself, and spur innovation. Theres no reason that health insurance and health care are any different than

any other type of market, if we let them function as a market. And right now, we dont. Not to say that Im passionate about it or anything. Q: Weve heard Republicans say repeal is the answer. Ive heard from a few people, including Virginias Bob Marshall, that repeal isnt enough that there would be too many remnants of the Affordable Care Act. Legally, at least, what do you think would have to happen for the Affordable Care Act to be eradicated? A: When I think of repeal, I presume that what people mean is taking out whats already been done and stopping it going forward. I guess it sounds to me like different people are taking different meanings of the word repeal. What you described sounds like a view of repeal that just means, dont do any more going forward. And I view repeal as taking out whats already been done as well, going backward. And there are people who think thats pretty disruptive. But its less disruptive than the bill itself. I do think, my thought on next steps is constructive steps along the lines of the policy proposals I was mentioning earlier. Start putting in place one thing at a time, one thing at a time, bang, bang, bang, steady as she goes, keep doing it. And not all of it will pass. Thats why we elect people. Thats why they have choices. But dont roll them all together. Gosh, weve had more than too much of that. And lets let people stand accountable one election after another for the things they do vote for and the things they vote against. But lets do it more distinctly so that it isnt a 2,700-page bill, and lets start making decisions on a much more rational basis as a country. I think a lot of people would appreciate that. So I think thats what comes next. 23 minutes Theres no silver bullet to American health care reform. But what there are is the old, a lot of little bites. If you want to eat an elephant, how do you do it? One bite at a time. And its very important when we get to repeal and start working on what comes next, that the federal government Republicans and Democrats, because Ill sue Republicans just as fast as Id sue Democrats that they not trample on the states role in this process and the prerogatives of the states. And its very important for that flexibility to be maintained, encouraged, and frankly, relied upon.

Theres this habit at the federal level to try to solve everything themselves, and thats not what the founders had in mind. And what you end up doing is not solving. And Ill leave you with this comment on that. I was talking to a bunch of Republicans two months ago on Capitol Hill, maybe 20 congressmen. And we were talking about the Obamacare lawsuit, but then talk turned to the medical malpractice I wont even call it reform that they put in place the imposition that had been voted out of the House, which I believe was unconstitutional. And I told them if it was ever signed into law, Id sue them faster than Id sued the president over Obamacare. And they, needless to say, a lot of them were taken aback by that and were really upset about it. But the thought I left them with was look, let me ask you this way, and this is policy, not constitution. How sure are you that your one solution is the best one, the best one, for all 50 states in the whole country? Because you bring innovation at the state level to a complete halt. And it was interesting. Ive done jury trials, Ive watched witnesses. Im pretty darned good at it, actually. And the reaction around the room was really that hit a lot of people hard. That hit a lot of people hard. They clearly had never thought about what it means for the crushing of innovation. Theyd never thought about it.