taxing authority

The White House's Response To Virginia's Round One Health Care Win

Perusing liberal blogs today has been a hoot. The Left Wing is in hysterics (for example, see Blue Virginia). At least it uses a nice picture of Attorney General Ken Cuccinelli. More composed, of course, but no less disingenuous, is the White House itself. Stephanie Cutter, writing on its blog, posted the following:

Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government.

The federal government believes this procedural ruling is in error and conflicts with long-standing and well-established legal precedents . . . designed to preserve the "judiciary’s proper role in our system of government" and to ensure that our courts do not become forums for political debates.

Now that this preliminary stage has ended, the government fully expects to prevail on the merits. The Affordable Care Act falls well within Congress’s power to regulate under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.

So little written, so much nonsense. Regarding activist courts, the Left Wing should know better. Much better. But they often prove not understand the U.S. Constitution — or purposefully misguide: The courts were put in place as a safeguard against government encroachment on individual liberty. So, when the government overreaches (especially when new requirements are established), individuals, localities and states have recourse. It is the check against the ruling class which, if not held back, could easily consolidate all power unto itself. By the White House's logic no law can be overturned as long as it is — by definition — passed by Congress and signed by the president. Absurd!

Real judicial activism is legislating from the bench, rather than undoing a law, or something not previously on the books. So the White House has it only half correct, but it is liberals who, over the decades, when failing to get legislation passed into law, have resorted to seeking decrees from courts to invent laws and "rights" nowhere to be found in the constitution. There was no more frank admission of this than the infamous remark by now-Justice Sonia Sotomayor where she said, "The court of appeals is where policy is made." (See YouTube.)

The White House also cities numerous clauses, a debate it assuredly doesn't want to have — at least not before it finishes debating itself. None of the clauses mentioned empower the government to force people to purchases something they may not use. Knowing this, the Justice Department argued at the hearing to dismiss on July 1 that the law comes under the taxing authority of the constitution. But at every turn, including his campaign and during the shambolic legislative process leading up to the health care vote, Barack Obama and Congressional liberals said it was not a tax bill.

As a candidate, Mr. Obama went so far as to oppose an individual mandate, opposition to which is the thrust of Attorney General Cuccinelli's argument (see news release). That the White House and its own DOJ are on separate pages tells us much and perhaps liberal bloggers need rant at them before taking aim on the attorney general. Even bloggers at the White House.

Virginia, Cuccinelli Win Round One Against ObamaCare!

As we were one of the first to report this morning, Virginia, through Attorney General Ken Cuccinelli (see news release), and despite what almost every liberal pundit and legislator has prognosticated, won round one in his lawsuit against the constitutionality of the new federal health care takeover law. Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, in Richmond, ruled against the Department of Justice's motion to dismiss the case because Virginia, it alleged on several fronts, has no standing. Judge Hudson rejected those arguments and the case now will go to full trial, on October 18 in Richmond (see Washington Post Virginia Politics Blog). In his 32-page ruling (see here) Judge Hudson wrote:

Although this lawsuit has the collateral effect of protecting the individual interests of the citizens of the Commonwealth of Virginia, its primary articulated objective is to defend the Virginia Health Care Freedom Act from the conflicting effect of an allegedly unconstitutional federal law. Despite its declaratory nature, it is a lawfully-enacted part of the laws of Virginia. The purported transparent legislative intent underlying its enactment is irrelevant. The mere existence of the lawfully-enacted [Virginia] statute is sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it.

Ouch! Quite smackdown to the feds' several arguments as well as to left-wing pundits and activists who repeatedly said Attorney General Cuccinelli had no standing, no right, no business and no chance in filing this suit. Judge Hudson's opinion, boiled down, is exactly what the AG has said all along: That he took an oath to defend not only the U.S. Constitution, but the Virginia Constitution and the laws of the commonwealth. Judge Hudson also found that even though the federal insurance mandate doesn't take effect until 2014, the case is "ripe" because a conflict of state and federal laws is certain to occur. All are obvious reasons to proceed to trial to anyone with commonsense, regardless of political persuasion, except the hyper left.

At issue at the trial on October 18 is whether the federal government can order individuals to buy something (in this case, health insurance) in contradiction to Virginia law, the Virginia Health Care Freedom Act (see text). Then, it will be the AG on the offensive, asking for summary judgment. In the hearing to dismiss on July 1, the Department of Justice said it was not invoking the Commerce Clause of the U.S. Constitution, as Congress itself said it was, but rather its taxing authority, which made for some pretty humorous and pretzel twisting arguments from the government's lawyers.

For what it's worth: At the conclusion of the hearing on the feds' motion to dismiss, Judge Hudson promised a decision by the last week of July. When it didn't come last week, it was widely expected to come this morning. We were notified of the ruling around 10:30. One tip that something was up was a promo last night on the Fox News Channel that the AG would be on On The Record with Greta Van Susteran (hear her commentary) tonight at 10:00. Odds are that it won't be the only show upon which he will appear.

In the meantime, we were the only media, new or old, to have Attorney General Cuccinelli's entire July 1 post-hearing news conference. To see it, and hear more of his legal reasoning behind the case, click here.  

As we said from the early days of this past General Assembly session, what Virginia was doing with the Health Care Freedom Act was historic. Today was another new chapter which, most likely, will have several more written.