Nationwide protests were “Astroturf.” Polling was to get better
once Congress passed a bill. And the new law was supposed to boost
Democrats’ electoral chances in November. Throughout their campaign
for national health care, liberals tried to convince us that
opposition was a joke, only to be proven dramatically wrong each
and every time.
This Monday, a federal judge punctured another liberal fantasy
— that constitutional challenges to ObamaCare were frivolous
exercises that would be laughed out of courtrooms.
In a 42-page
decision, U.S District Court Judge Henry Hudson ruled that the
health care law’s requirement that individuals purchase insurance
“exceeds the constitutional boundaries of congressional power,”
rejecting the Obama administration’s argument that the Commerce
Clause gave it the authority to compel the purchase of coverage as
part of a larger health care regulatory scheme.
“This case isn’t about health insurance, it isn’t about health
care, it’s about liberty,” Virginia Attorney General Ken
Cuccinelli, who was mocked by liberals in March when he launched a
lawsuit against the law, told TAS in a phone interview
Monday evening.
If courts ultimately uphold the individual mandate, Cuccinelli
argued, it will give the federal government unprecedented power
over Americans’ lives. The mandate is also being challenged in a
separate lawsuit filed by 20 states led by Florida.
“If the feds win this case, they can do anything,” he said.
“They can force people to buy cars, asparagus — the list goes on
and is infinite…. It is no underestimation to say that it (would
be) the end of federalism. That nothing the federal government does
(would be) limited by enumerated powers.”
Given the uncertainty that is hanging over states as a result of
the pending constitutional challenges, Cuccinelli is in talks with
the U.S. Department of Justice to join together in urging the U.S.
Supreme Court to expedite hearing the case. But the Obama
administration is likely to appeal the decision to the Fourth
Circuit.
While that court was once considered one of the most
conservative appeals courts in the nation, three recent Obama
appointees have
tilted the balance, and Democratically appointed judges now
outnumber Republican ones by an 8-to-5 margin. Typically, the court
hears cases in three-judge panels, but it also has the option of
hearing them as a whole, or en banc.
“My focus is on the end point,” Cuccinelli explained, asked
about the composition of the Fourth Circuit. “I don’t mind losing
everything except the last one.… One way or the other, it’s going
to be tight. I think it’s going to be close at the Supreme Court as
well.”
Unlike other types of lawsuits, this one doesn’t involve
depositions, discovery and witnesses. “This is a pure legal
debate,” he said. “And the universe of available legal argument is
pretty well known at this point. We may reformulate it for
different panels, for the Fourth Circuit. But the contours of the
legal argument are pretty well settled at this point. Nobody is
going to say, ‘Aha, I found the silver bullet case!’ That isn’t
going to happen at this point. It’s a matter of how the judges
along the way — by that I mean moving up the appellate chain —
respond to the same type of arguments you saw in the District
Court.”
While Hudson (a George W. Bush appointee) held that the
individual mandate “exceeds the Commerce Clause powers vested in
Congress under Article I,” two other district court judges
(appointed by Bill Clinton) have upheld the individual mandate as
constitutional, arguing that not purchasing health insurance is an
“economic decision” and therefore fair game for regulation under
the Commerce Clause.
Speaking of
one of the decisions, by U.S. District Court Judge George Steeh
of the Eastern District of Michigan, Cuccinelli said, “It adopts
such a leap of logic and language, to reach the conclusions that
judge reaches, that I hope other judges read it and go, ‘Whoa, this
is what it takes for these guys to win? I don’t want to sign on to
this.’”
Congressional power under the Commerce Clause has been greatly
expanded by courts from its original meaning in the Constitution,
but the individual mandate takes things to a whole new level by
saying that it gives the federal government the right to compel the
purchase of something. That’s why Cuccinelli believes that the
mandate can be struck down without overturning prior Supreme Court
rulings.
“It is quite an incredible leap to go from regulating actual
voluntary activity that affects commerce, to say that doing
nothing, and the accumulation of people doing nothing, affects
commerce in the sense that if they did something, the market would
look different,” he said.
Cuccinelli argued that those who may favor expanding federal
power now because they support the health care law may one day find
that it comes back to haunt them.
“How much would the folks who voted for this bill appreciate a
mandate that every American buy a gun?” he asked, laughing
heartily. “And not whatever you want, we’re going to have a
government-approved list of guns. And they’re going to be ugly,
mean-looking guns that normally these people would try to ban.”
Assuming that the case travels through the typical appeals
process, Cuccinelli estimated that it would be roughly two years
before the Supreme Court issues a decision. The individual mandate
component of the law is scheduled to go into effect on January 1,
2014. For now, he says he’s “cautiously optimistic.”
