Virginia just cut
billions in services

And here's how the AG is spending our money

A non-lawyer with less than an hour of Internet research can reduce Virginia Attorney General Ken Cuccinelli's April 8 op-ed ("Here's why the state sued over U.S. health care law") to what it really is -- a politically motivated waste of money that's based on either utter nonsense or the same strict Constitutional constructionalism that said slavery is okay.

We'll start with the constitutional law first.

This op-ed appeared the same day Gov. Bob McDonnell backtracked from his position on states rights; you know, the old line about "there were other reasons for the Civil War than slavery." McDonnell called leaving out slavery an "omission," but for Cuccinnelli, the doctrine of state rights and its long record of inflicted misery is alive and well.

Nowadays, though, the PR spin isn't for promoting the rights of the states but on limiting of the powers of the federal government. The legal arguments generally take place on the Commerce Clause of the U.S. Constitution or the 10th Amendment, which says:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The problem for Cuccinelli is that the Supreme Court doesn't see the 10th Amendment as a limitation but a statement of fact. From the oft-quoted U.S. v. Darby Lumber, issued seven decades ago:

"The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment."

It's worth noting that the U.S. Supreme Court rarely strikes down a law for violating the 10th Amendment, and it's really worth noting that the doctrine of state rights has generally been used to limit freedom, not expand it. The 14th Amendment -- which provides for equal protection and due process -- was needed precisely because the 10th Amendment wasn't cutting it.

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The Virginia Health Care Freedom Act, passed in the legislature this year, says "no resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage." This is pretty interesting, considering the state requires me to have auto insurance.

Cuccinelli gets that. The second paragraph in his op-ed poses the two questions he wishes to answer.

"Many citizens have asked how the attorney general can sue over this conflict when the U.S. Constitution’s Supremacy Clause usually allows federal law to trump state law. Others have asked, if the government mandates that we buy auto insurance, why can’t it mandate that we buy health insurance?"

His first answer is that requiring medical insurance violates the Commerce Clause of the constitution because "if someone isn't buying insurance, then – by definition – he is not participating in commerce. How, then, can the government use the Commerce Clause to regulate non-commerce, ie. regulating inactivity?"

The counter point starts with looking up the Commerce Clause in Wikipedia, where you'll see it's been applied to everything from how much wheat you can grow for your own consumption to medical marijuana.

In fact, the reefer case shows why Cuccinelli is wasting our money. The pot was never sold, it never crossed state lines, and the court still ruled Congress was not in violation of the Commerce Clause by banning its growth!

How did this happen? Because the court said Congress had a "rational basis" for seeing how private growing could eventually impact the entire illegal market. A rational basis review is a standard in constitutional law, and considering insurance is based on a pool of many, and considering how non-participation affects the total pool, for Cuccinelli to justify his spending money on all this, all he has to do is overturn seven decades of legal precedent.

Good luck with that.

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His second point -- why Virginia can require auto insurance but the feds can't require health insurance -- moves from the specious to the truly strange.

First, he offers the notion that since the 10th Amendment limits federal power (which, as we've already noted, isn't supported by precedent) states actually have MORE power than the feds. In fact, he says Virginia would have the power to require everybody to have health insurance, which begs the question as to why he thinks having sick, suffering uninsured people is a good thing.

Secondly, he presents this:

"Buying auto insurance is voluntary, since you are only required to purchase it if you choose to drive on public roads. But buying health insurance under the new federal law is not voluntary, as you are required to buy it just by virtue of the fact that you are breathing."

This is a classic case of de jure (from law) versus de facto (from fact). Since he mentions public roads, is there a private road network serving Virginia? Does he really think a printing press operator in Gordonsville can commute to that job without a car? You're going to live and work in Northern Virginia without a car? How many pedestrians have you ever spotted around Ikea at Potomac Mills?

Maybe our attorney general has a personal driver; it's hard enough to catch a cab in Richmond. Maybe all the people Cuccinelli knows can afford a chauffeur. I would argue that transportation is as essential as oxygen in modern Virginia, and it's probably not accidental that people use terms like "strangled with traffic" when describing highway conditions here.

I guess, in a legal sense, I choose to buy my electric power from Dominion because if I had $30,000 I could install solar, wind and geothermal (if zoning would let me). I guess I choose to use public roads like I chose to use the city sewer system instead of building my own outhouse (again, if zoning would let me).

Toward the end of his op-ed, he repeats what's becoming a conservative, GOP soundbite on the issue, one of those ominous philosophical points that folks like Rush Limbaugh specialize in:

"The federal government has never before in history exercised its regulatory power to require someone to buy a product or service as a condition of residence in the United States."

Really? I can't travel to a foreign country, and then return to the U.S., without buying a passport. As a citizen, I had to go to school, but I couldn't go to school without buying vaccinations from a health care provider.

Are there legal technicalities involved in these two arguments? Probably, but to me, it's a distinction without a difference. Government on all levels requires me to do all kinds of things, and in return, I get to vote on what those requirements might be. I'm not guaranteed that I'll get what I want. All I'm guaranteed is a vote.

In a few short months in office, Cuccinelli has tried to deny global warming, he's tried to deny equal protection for gays, he's tried to deny health care improvements-- and he's tried to deny that his efforts are motivated by politics. In each case his actions have appealed to a conservative Republican base while flying in the face of established science, fundamental principles of equality, or long-settled constitutional law.

I expect my attorney general to first and foremost be a good lawyer, and I expect a good lawyer to know when he's going to lose. Because if he goes ahead with something hopeless, there must be another agenda at play.

Really, it's not my concern if he's already running for governor. My concern is that he's doing it with my tax money.

-30-

First, try as he can, Mr. Marshall just can't make any sense of why Cuccinelli is opposed to getting a social security number for his kid. Second, in fairness, Mr. Cuccinelli is not the first Virginia politician to use expensive lawsuits for political ends. Former Gov. Jim Gilmore tried to ban the importation of out-of-state garbage, which Mr. Marshall predicted would be struck down as a violation of the Interstate Commerce Clause. It was.

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