Special Report

The Constitution’s AG

Federalism has a staunch friend in Virginia's attorney general Ken Cuccinnelli.

By 9.17.10

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Last Sunday, days before 20 other states went to federal court to oppose the new health reform law Virginia Attorney General Ken Cuccinelli -- who had already trounced the feds in the first round of his state's anti-ObamaCare litigation -- delivered a national address of sorts in front of the U.S. Capitol.

He told an approving crowd that he looked forward to taking the case to a building "about two blocks that way," referring to the U.S. Supreme Court, where he vowed to "kill the health care bill dead." The thousands at the 9/12 Taxpayer March on Washington loved it.

Like the other states' suit, Cuccinelli's is primarily about dropping the mandate requiring individuals to purchase health care or face federal penalties.

But Virginia is suing separately in part because the legislature passed (by a wide bipartisan margin) and the governor signed the Virginia Health Care Freedom Act that bars state residents from being forced to buy health insurance. Thus, the federal law clashes with state law.

On Aug. 2, U.S. District Judge Henry E. Hudson denied the federal government's motion to dismiss Virginia's lawsuit, meaning the case will proceed, likely to the high court as Cuccinelli predicts.

"If the federal government can order you to buy Nancy [Pelosi] approved health insurance, they can order you to buy anything," Cuccinelli told the Tea Party crowd in Washington. "And then, not only have we eliminated government of enumerated powers, we no longer have the compound republic we call federalism. States no longer matter, and that is one of the goals of this administration and Congress and in Virginia where it all began, we're going to fight it until the very end."

While the lawsuits are likely to be combined before going to the Supreme Court, Cuccinelli might still have positioned himself to stand out among the other state attorneys general as a national hero if ObamaCare goes down.

When a reporter asked him after the speech what would be the next big case after health care, the AG answered, "We're suing the EPA over the greenhouse gas. Unfortunately, I wish I didn't have so much to do with the federal government, but if they keep lobbing these things over the wall, we're going to keep hitting them back. Unfortunately, there's plenty to do there for the foreseeable future, until we have a new Congress and a new president."

Regardless of his wishes about tangling with the federal government, those battles are making Cuccinelli -- elected attorney general in 2009 as part of a GOP sweep in the commonwealth -- a national name in the Republican Party and the conservative movement.

In addition to his suit against the Environmental Protection Agency for regulating carbon without congressional approval, Cuccinelli is also probing aspects of the Climategate scandal in his own state.

Climategate -- the scandal involving e-mails that indicate certain scientists manipulated climate data to support the idea of man-made global warming -- involved climate scientist Michael Mann, now a professor at Penn State. But from 1999 to 2005, Mann was on the faculty of the University of Virginia.

Cuccinelli is invoking the Virginia Fraud Against Taxpayers Act to subpoena documents from the university pertaining to some $500,000 in grants for Mann's research while at the school.

Another kind of climate, the political one, makes it particularly likely this attorney general will reach national fame fairly soon. Gov. Bob McDonnell is very popular in Virginia, having produced a budget surplus without raising taxes. But Virginia governors are limited to just one term in office.

If Cuccinelli is the GOP nominee for governor in 2013, and if he gets the same enthusiastic support from a popular McDonnell that candidate Tim Kaine got from the popular Gov. Mark Warner in 2005, he might very well win. And swing states, which Virginia has become, are prime places to choose nominees for president or vice president. At a minimum, Cuccinelli is a leading candidate to challenge Sens. Warner or Jim Webb.

But, unlike McDonnell who made an effort to avoid social issues in his winning campaign, Cuccinelli has weighed into a few issues that would make the Republican establishment and even libertarians in the party a little squeamish, while making him a favorite among social conservatives and tea partiers.

He issued a legal opinion that state abortion clinics can be regulated by the state and required to meet the same health standards as other outpatient surgical centers.

"The state has long regulated outpatient surgical facilities and personnel to ensure a certain level of protection for patients," his communications director Brian Gottstein said in a statement. "There is no reason to hold facilities providing abortion services to any lesser standard for their patients. Even pharmacies, funeral homes, and veterinary clinics are regulated by the state."

He also issued a legal opinion that Virginia already has the authority to inquire about immigration status, similar to the controversial Arizona immigration law. The opinion stated that Virginia police, when they have "reasonable articulable suspicion to believe a crime has been committed or probable cause is present, police can inquire about that criminal violation -- whether the crime is a violation of immigration laws or some other crime." The opinion further states, "We said that when police have done a lawful traffic stop, police can ask about immigration status so long as that does not prolong the length of the stop." The opinion further states this "does not usurp federal authority."

But if Cuccinelli becomes known as the guy who brought down ObamaCare, the libertarian wing of the GOP, and perhaps the establishment, might be very tolerant of a few ideological deviations.

He certainly has the rhetoric to appeal to any small government conservative.

"When I took my oath of office, I swore to uphold the Constitution of the United States and protect it, including from our own federal government and that's what we're doing," he said at the rally in Washington, referring to the $1 trillion health care overhaul.

For decades of Democratic state attorneys general tried to make a name for themselves by kicking around "Big Tobacco" and Wall Street "fat cats," a.k.a. the private sector. Perhaps Cuccinelli represents a new trend, that this stepping stone political office can be used for something nobler such as confining the federal government to its constitutional limits.

"Your state's attorney general is your last line of defense in protecting the Constitution against the federal government," Cuccinelli said. "And it may be the last line of defense. But I've got news for you. It's not a quite one. We're not asleep on the watch, and we're going to fight until we've got our Constitution back and we've knocked the federal government back inside the boundaries of that sacred document."

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About the Author

Fred Lucas is the White House correspondent for CNSNews.com.