Cuccinelli: Health Care Decision Defines Limit Of Federal Power

Today's Supreme Court ruling upholding much of the Affordable Care Act was a disappointment for many opponents of the law. Virginia's Attorney General Ken Cuccinelli has been among the most vocal — Cuccinelli was the first to file a legal challenge to the law in March 2010. WAMU's Rebecca Blatt spoke with him about what he describes as a 'silver lining' in the ruling.

Earlier today, you said that 'individual liberty has been substantially preserved in this case.' What do you mean by that?

"Because the court finally, and for the first time since the New Deal, explicitly defined an outer limit of federal power under the Commerce Clause — which is the clause that the federal government usually uses to do things like EPA regulation, NLRB, and the list goes on and on and on. Here they were trying to compel us into commerce to regulate us. The Supreme Court not only says they can't do that, but also explicitly said that the Wickard v. Filburn case from 70 years ago this year is the outer limit, and attempts from the federal government to go farther than that are of no avail."

"The other restraint on federal power that was contained in the case was under the spending power. So also for the first time since the New Deal, and it's hard to overstate how important that this is given that it hasn't happened for 85 years, the federal government is not allowed to compel states like Virginia to join their Medicaid expansion under the threat of losing all the existing Medicaid dollars in Virginia's Medicaid system. That was rejected by the court, and it is the first time since the New Deal that any restrictions have been placed on the federal spending power. And of course, the spending power has been a tool of used by the federal government to exercise an extraordinary control over states and has also gotten them into a large amount of trouble, unbalancing our books."

At the same time, you must have been disappointed that they didn't strike the law down altogether.

"Absolutely, I certainly am. I would have much rather seen the whole law go down simply on the decision over the Commerce Clause, which we prevailed on, but then they moved on to decide that the money you have to pay if you don't buy their chosen health insurance is a tax under the constitutional power of the Congress to tax. And that's a very broad reading of the taxing power — let's make no mistake about it — which is very concerning to me. This whole funny structure with the mandate was all put in place essentially to avoid a lot of legislators having to make a tax run, because it's the point of our system where there is the most accountability. Elected officials want to vote for taxes less than anything else. They tried very hard to restructure this thing to not be a tax. The Supreme Court has said that any time you have anything that raises even a penny like this, it's going to be a tax vote."

Do you expect Virginia will opt out of the Medicaid expansion?

"I would expect a lot of states will do that, and I would expect Virginia will be one of them. For Virginia, over the course of the next ten years, that could amount to more than $200 million a year once that gets going, and that's a huge hole in the state budget, and frankly we'd rather avoid it. We could have undertaken some of these expansions already, and we've chosen not to do that. I don't expect Virginia to move forward with that because we don't have the Damocles sword of all our Medicaid funding going away now hanging over our head."