PrintDecember 13, 2010
Virginia AG Cuccinelli's press conference (updated)
This afternoon Virginia Attorney General Ken Cuccinelli held a press conference to explain his view of the case and what the next steps would be. He said this litigation was a "long process"; that as the case was wending its way to the Supreme Court, he anticipates the Administration will seek an appeal in the Fourth Circuit and plans to seek an agreement to expedite that process to avoid the costs the Commonwealth would be forced to incur as the appeal proceeds.
Politico's reporter indicated the government had suggested it would not agree to an expedited appeal, but Cuccinelli said he had not been told that and therefore was not prepared to say whether he'd move to expedite the appeal without the agreement of the federal government.
As for the severability issue, the Attorney General said: The Administration gave its word in court it would abide by the Court's declaratory ruling. In his opinion [p. 40] the Judge indicated which provisions were dependent on Section 1501's mandate (essentially all those provisions relating to insurance) and the Court had no need to enjoin the enforcement of those provisions because it is anticipated the government would keep its word and abide by that ruling.
Update: Virginia AG Cuccinelli's statement:
There were two basic arguments in this case.First, Virginia argued that the individual mandate was beyond the power of Congress and the President to impose under the Constitution. Specifically, Congress claimed that their regulatory power under the Commerce Clause allowed them to order you to buy their government-approved health insurance, even if you decide not to buy health insurance.
The judge ruled that the federal government does not have the power to compel you to buy health insurance as part of its attempt to regulate the entire field of health care and health insurance. Thus, Virginia won this argument.Second, the federal government advanced a 'fallback' argument in case it lost on its commerce clause argument. The feds' fallback argument was that the financial penalty you have to pay if you don't buy the government mandated health insurance is a tax.This may sound like an odd argument from a political standpoint - usually they say everything is NOT a tax (in fact, they argued the penalty was not a tax while they were trying to get the bill passed); however, they changed position after the bill became law to try and save the bill. What they were trying to do was to get the courts to agree that because the penalty would presumably raise some revenue, it was therefore a 'tax' under the taxing and spending for the General Welfare Clause of the Constitution.No judge in the country has bought this argument, and Judge Hudson was no exception. He ruled that the taxing power of Congress does not save the bill, because the penalty for not buying the mandated health insurance is not a tax.The federal government only had to win on either of these two arguments, while Virginia needed to win both to prevail, and we won both!
What's Next?Certainly the federal government will appeal their loss in the district court to the 4th circuit court of appeals within the next 30 days. And whichever side loses in the 4th circuit will certainly appeal to the Supreme Court. And no one has any serious doubts that ultimately the constitutionality of the individual mandate will be decided by the U.S. Supreme Court.
That could take approximately (very rough approximation) two years. We are discussing with the Department of Justice accelerating the case, and those discussions have been very cordial thus far. More on that later.ConclusionToday is a great day for the Constitution. Today the Constitution has been protected from the federal government, and remember, an important reason for the constitution in the first place was to limit the power of the federal government.
Today is also a day of a small degree of vindication. When we first filed suit, the screeching of the liberals was deafening. Everything from accusing us of playing politics instead of practicing law, to filing what they called a 'frivolous' lawsuit.I want you to know, that our team makes decisions based on the Constitution and the laws. Period. We deal with the consequences of our decisions separately, but first and foremost we have been and will continue to be true to the Constitution and laws of the United States and Virginia, regardless of whether it's easy or hard in any particular case.
Richard Viguerie, one of the founding fathers of modern conservatism, sees in Cuccinelli an important face of the GOP's future:
"With his court victory over Obamacare, Virginia Attorney General Ken Cuccinelli has taken his place on the national stage as an important conservative leader.
"Cuccinelli joins a growing number of recently-elected young conservatives who will redefine the Republican Party.
"For decades, the number one need for conservatives has been young principled leaders. Recent elections have greatly increased the number of young conservatives who will soon become the face of the GOP. These include Sarah Palin, Tim Scott, Susana Martinez, Marco Rubio, Mike Lee, Nikki Haley, and many others.
"Ever since Ronald Reagan left the presidency, the face of the GOP has been establishment, status quo, big-government (but not quite as big as Democrats want) politicians, epitomized by Bob Dole, John McCain, Bill Frist, Denny Hastert, Tom Delay, and Bush 41 and 43.
"There wasn't a small-government constitutional conservative in the entire batch."
