AG Cuccinelli discusses Obamacare in 4th Circuit

[allingeneral]

My Fellow Virginians and Friends,

Two weeks ago, we had our oral argument in Virginia's case against the federal health care legislation - specifically against the individual mandate. It was an interesting day, and I wanted to offer you a few reflections on the hearing.

Virginia is in the 4th Circuit of federal appellate courts. The states of Virginia, Maryland, West Virginia, and North and South Carolina are the states in the 4th Circuit. Last Tuesday, we argued before a 3 judge panel of the 4th Circuit. There are 14 judges on the entire bench in the 4th Circuit. Our 3 judge panel was randomly selected from the judges on the 4th Circuit. As you may have read, our panel was composed of: Judge Motz, appointed in 1994 by President Clinton; Judge Davis, appointed in 2009 by President Obama; and Judge Wynn, appointed in 2010 by President Obama.

Also arguing in front of the same panel was Liberty University. We are in the interesting position in Virginia of having two different cases, with different parties, not one. There are two federal districts in Virginia - the Eastern District and the Western District, and there was a separate case in each district.

In the district court, Virginia's case was in the Eastern District, where we won. Liberty's case was brought in the Western District, where they lost. So, in the 4th Circuit, the U.S. had appealed our case and Liberty appealed its case.

In the 4th Circuit, one 3 judge panel cannot overrule another 3 judge panel. Thus, to maintain consistency in rulings, both cases were put in front of the same 3 judge panel.

The 4th Circuit is known for asking a lot of questions and probing the responses thoroughly. Our hearing was no exception. The two hearings were scheduled for about an hour and a half total, but they went well over two hours - approaching two and a half hours total.

The pressure that builds up on the lawyers in such an extended set of exchanges does serve a useful purpose. The lawyer for the federal government, the Acting Solicitor General of the U.S., was pushed into a couple of very candid statements that I found fascinating - especially at the very end of the hearing.

But first, it is helpful to have a brief reminder of the basics of the case - though I know most of you have been following this case closely.

There are four elements to this case: 1) standing, 2) the individual mandate under the commerce clause, 3) the penalty under the taxing power, and 4) any remedy, particularly in light of the absence of a severance clause in the bill. The fourth item was not addressed in the hearing, so I will just address the first three.



The Hearing

The U.S. pushed hard to knock Virginia out on standing, i.e., the idea that Virginia doesn't even have the right to bring its case. The federal government seem down right offended with the concept that Virginia could have a law and when the federal government later enacts a conflicting law, that the clash between the two would be a sufficient basis for Virginia to bring a lawsuit.

One of the judges asked us "is all a state has to do to have standing to sue the federal government is pass a law?" Our answer? "Yes."

It's worth remembering that the states' representatives wrote the constitution that established our federal government, and it was adopted by the people's representatives in constitutional conventions across America. As one of my children might say, "we were here first."

It may appear to some to be inconvenient for states to have the authority of a co-sovereign with the federal government, but it seems a small price to pay for the federal government in exchange for its very existence. It is also critical to federalism that states be able to challenge federal overreaches of power that would trample state laws. It might be nice if we didn't have so many "opportunities" to address such overreaches of federal power, but they've been keeping us pretty busy in that regard!

During the hearing, there was a discussion of a 'parade of horribles.' One of the examples was, 'well, if Virginia can sue over this, then they could pass a law saying its citizens couldn't be sent to Afghanistan to fight the war.' Well, Virginia could theoretically pass such a law and even bring a lawsuit, which the federal government would quickly win because it has the power "to raise and support Armies" under Art. I, §8 of the constitution.

As we said in the courtroom, 'yes, Virginia would have standing - standing to lose the case.' Again, there may be an element of inconvenience to the federal government, but that hardly seems a significant concern in order to provide a co-sovereign the dignity of a mere attempt to protect its own code of laws.

The concept of state sovereign standing has been recognized by the U.S. Supreme Court to allow a state to defend its code of laws. Every other federal circuit court of appeals to directly address the issue has found that a state has standing to defend its code of laws from federal challenge. I am hopeful that the 4th Circuit will come to the same conclusion in our case.


The Merits, i.e., the Meat of the Case

The issue that the Court spent the most time on was, not surprisingly, the individual mandate. As I mentioned earlier, I found two of the federal government's statements during the case to be particularly interesting.

The first statement was to describe what is supposedly being regulated via the individual mandate. The feds said fairly early in the oral argument that the individual mandate is part of an attempt to "regulate the decision to self-insure." This is their way of trying to cast an individual citizen's decision in commercial terms (remember, we're mainly debating the reach of the commerce clause).

It's a very clever way of saying 'we are regulating your decision to do nothing.'

The commerce clause cases during the last 100 years have addressed regulating some sort of activity; and they have used the word "activity." The feds are trying to overcome the fact that there is no activity being regulated, so they have to come up with creative excuses for activity and say that that's what the legislation regulates. Thus, in the hearing on May 10th, they argued that the "decision to self-insure" was the activity being regulated.

A problem with this line of argument is that it logically leads to a "decision" being equivalent to an "activity." I.e., thinking something is the same as doing something. The district court judge in the case in D.C. ruled that the individual mandate is constitutional, and she actually acknowledged and approved of the fact that the individual mandate is regulating "mental activity." George Orwell would be proud, but let's face it, that judge accurately describes what the federal government is trying to do!

If you take a decision alone, without more, there's no activity there - just thought - then the government is equating inactivity to activity. That is their argument.

The second statement came nearly at the end of over two hours of discussion, questions and answers. One of the judges indicated that she was not comfortable with the federal government's attempt to address our activity/inactivity distinction, and in response, the lawyer for the federal government said that even if the court found that there was no activity of any kind, that the law was constitutional anyway. This was an astonishing statement.

In other words, instead of trying to convince the court that there was some kind of activity going on that the federal government was regulating with the individual mandate, they finally broke down and said that - in their view - they didn't even need any activity anyway, they could just order you to go buy their government-approved product (in this case, health insurance).

This would convert Congress' authority to regulate interstate commerce into an unbounded power - just as I have been arguing all along.

Up until this point, the federal government has danced around this issue. But when pressed, they finally conceded the sweeping nature of their claim of power.

If the feds' position is upheld, it would essentially swallow up much of the rest of the constitution. If you don't even need to do anything to be subject to federal regulation under the commerce power, then the feds can reach vast areas of our society now thought immune from federal authority.

Oh, and by the way, federalism would be dead and liberty would be badly damaged...

That's why I always say that this case is about liberty, not health care.


What's Next?

It will likely take a couple of months for the 4th Circuit to issue its order in our case. If we win, I suspect that the federal government will NOT appeal to the Supreme Court, rather, they would attempt to drag the case out by seeking what is called "en banc" review. That means a rehearing by the full 4th Circuit - all 13 active judges. Only then would whichever side loses at that hearing be able to appeal to the Supreme Court.

If we lose, we will likely appeal to the Supreme Court directly, in the hopes of resolving this case as quickly as possible.

As we wait for the outcome in our case, there are three others headed to appellate courts around the country.

On June 1st, the 6th Circuit will hear an appeal in Cincinnati of a case brought by the St. Thomas More Society and others.

On June 8th, the 11th Circuit will hear the appeal of 26 of our sister states in Atlanta. Their case is an appeal brought by the U.S. Government, as was the situation in our case.

Then, in September, the case in Washington, D.C. that I referenced earlier ("mental activity") will also be argued.

As I get news of the other cases, I will pass it along to you. And of course, when we get our order, I'll let you know!

A Separate Note

At the same time that tornadoes were ripping through much of the Southeast, Virginia was hit too. Five Virginians were killed and much damage occurred in Southwest Virginia.

If you are willing, I would appreciate it if you would donate to a relief effort to help our Virginia families. You can do so by clicking on: http://www.vaemergency.com/

Thanks for helping!


Sincerely,

Ken Cuccinelli, II
Attorney General of Virginia



Tell others to sign up for The Cuccinelli Compass at Attorney General Cuccinelli's Website:
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© All rights reserved, Ken Cuccinelli for Attorney General 2011

[jim100]

I applaud what the AG is trying to do. However, the part about where he is trying to say that Virginia is an equal to the Federal government is just not going to fly. Remember the southern states tried to say the same thing and look at what that got them.

[dorminWS]

I applaud what the AG is trying to do. However, the part about where he is trying to say that Virginia is an equal to the Federal government is just not going to fly. Remember the southern states tried to say the same thing and look at what that got them.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>
He's not saying they're equal. He's saying they're both soveriegn powers, and that the Feds have only those powers given to them in the Constitution. If the Constitution grants the feds a power, then they pre-empt states' power on that issue; but if the power was not granted, the states have a right to exert their soveriegn powers as to those issues. So, if the commerce clause does not cover the Obamacare law, then the states have a right to regulate and the feds do not.

[gunderwood]

I applaud what the AG is trying to do. However, the part about where he is trying to say that Virginia is an equal to the Federal government is just not going to fly. Remember the southern states tried to say the same thing and look at what that got them.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>
He's not saying they're equal. He's saying they're both soveriegn powers, and that the Feds have only those powers given to them in the Constitution. If the Constitution grants the feds a power, then they pre-empt states' power on that issue; but if the power was not granted, the states have a right to exert their soveriegn powers as to those issues. So, if the commerce clause does not cover the Obamacare law, then the states have a right to regulate and the feds do not.

+1

[jim100]

So what is this?

It's worth remembering that the states' representatives wrote the constitution that established our federal government, and it was adopted by the people's representatives in constitutional conventions across America. As one of my children might say, "we were here first.'

And this?

It may appear to some to be inconvenient for the states to have the authority of a co-sovereign with the federal government, but is seems a small price to pay for the federal government in exchange for its very existence. It is also critical to federalism that states be able to challenge federal overreaches of power that would trample states laws. It might be nice if we didn't have so many "opportunities" to address such overreaches of federal power, but they been keeping us pretty busy in that regard!.

The AG is trying to set a precedent for a state defying the federal government, which I applaud. However, The southern states tried this as well right before the War for Southern independence and the federal government sent American soldiers to subjugate the south and force them to give up the right to, not only secession, but also the right to disagree with and override any important federal legislation that conflicts with the constitution and what Virginia has already passed into law.

As per this quote.

The U.S. pushed hard to knock Virginia out on standing, i.e, the idea that Virginia doesn't even have the right to bring its case. The federal government seem down right offended with the concept that Virginia could have a law and when the federal government later enacts a conflicting law, that the clash between the two would be sufficient basis for Virginia to bring a lawsuit.

In essence the federal government considers itself to be a sovereign among subjects, in regards to the states, instead of a co-equal or even subservient as the states intended when they created the federal government by joining the Union.

[gunderwood]

@Jim

He's not saying their equal (which was what DWS started with). His explainable of that and my concurrence of it is all focused on that point. He's arguing that both the Federal government and States are sovereign in their spheres, but that the States actually cover much more than the feds do. I.e. the feds are limited to that which the states gave them, while everything else is reserved for the states. The point was is he's going above and beyond what you claimed and IMHO, he's right...in exactly the same way that ultimately sovereignty is with the people who could do away with their state (no likely, but they have such power).

You are correct that the feds have rejected that argument through force in the past and who knows, but it could come to that again. As I've said before, force doesn't settle a subject. The Civil War didn't finish the issue, it simply postponed it as the South wasn't willing to continue pushing the issue. It wasn't about who was legally, morally or ethically right, but who had the most force. The only way for this to be settled once and for all in the feds favor would be to abolish the states or amend the Constitution to explicitly say the states have given up such powers.

Until then, stay tuned!

Edit: I've argued the same when arguing against the incorporation doctrine. E.g. the First Amendment says "Congress" and makes no claim to anything beyond the Federal government for it's limitations (I say federal government since only one branch was given the power to make laws and it's Congress...there's no power to delegate authority either). I.e. the states are not bound by the 1st based on the legality of the Constitution. They may be of their own Constitutions or should be on principle. On the other hand, the Second Amendment has no such limitations and upon ratification it applied to all entities, including the states, which are within the jurisdiction of the Constitution. IMHO, the incorporation doctrine is a stretch and overreach of the judicial branch...it's dangerous to be basing our 2nd Amendment rights on such a doctrine (which is what the courts are doing).

[totes6]

@Gunderwood

Do you know of any articles/information on the "incorporation doctorine". I am just interested reading up on it and learning more about it.

[gunderwood]

@Gunderwood

Do you know of any articles/information on the "incorporation doctorine". I am just interested reading up on it and learning more about it.

Wikipedia is always a great place to get the lay of the land. It's really slang for the resulting court decisions and judicial doctrine coming out of the 14th Amendment.

http://en.wikipedia.org/wiki/Incorporat ... _of_Rights


What kind of book are you looking for? A historical or overview of how it came about? A legal text dissecting the various cases? A political analysis of how it distorts the previous American system of governance?