Skip to comments.Ken Cuccinelli: Victory in Defeat (The Va. Attorney General see's a silver lining)
Posted on 06/29/2012 6:51:40 AM PDT by SeekAndFind
Many of us are lamenting the Supreme Courts decision to uphold PPACA. The law will almost certainly lead to increasing medical costs and significant disruptions in the provision of health-care services.
Yet what must not go unnoticed is the fact that with parts of its decision today, the Court reaffirmed certain important core principles. The Court reminded the federal government that it has limited and enumerated powers. While the federal government is supreme in its sphere, it is not permitted to operate outside of its constitutionally defined role.
The Court expressly rejected the federal governments assertion that it could use the Commerce Clause to force citizens to engage in commerce for the sole purpose of regulating them. A majority of the Court held that the commerce power reaches only those who are currently engaged in commercial activities. It does not reach those who are not engaged in commerce, even if those very same people are likely to engage in commerce in the future. Thus, the Court explicitly adopted the activity/inactivity distinction that opponents of the law had championed and that liberal commentators had ridiculed.
Some will suggest that this is no victory at all, given the Courts ruling that the money one must pay for failing to obtain insurance can be supported as a use of Congresss taxing power. However, by confining within the taxing power the ability of Congress to adopt such schemes, the Court has greatly limited Congresss ability and political appetite to attempt them in the future. Now everyone will know that when Congress does something like this, it is without question a tax increase. Is there any doubt that if PPACA had been presented as a middle-class tax increase, it would have failed? Because the American people have made clear that elected officials raise taxes at their peril, it is unlikely will we see this particular gambit repeated.
Another thing to note is that Chief Justice Robertss opinion on the taxing power is limited. He noted that it could not be considered punitive because the amount citizens are required to pay for not having insurance is far less than they would have to pay to obtain insurance. He strongly suggests that, if Congress were to require citizens to pay an amount greater than the costs of insurance, that would constitute a penalty, and thus would be unconstitutional.
Additionally, the Court recognized a limit on Congresss spending powers. The Court blocked the federal government from withholding Medicaid dollars that states receive under the current Medicaid program if those states do not want to participate in the new and costly expansions of the program mandated under the health-care law. By doing so, the Court expressly limited the power of the federal government and allowed states to decide whether to accept or reject the Medicaid expansion on its own merits, without the threat of losing existing federal funding on which states have come to rely.
While it is still disappointing that the Court ultimately upheld the law, it clearly recognized that there are limits on federal power that Congress simply cannot transgress. By bringing these cases challenging the overreach of the federal government, my colleagues and I have called to mind William F. Buckley Jr.s vision for the role of National Review. As the federal government sought to exercise powers not delegated to it by the Constitution, we chose to stand athwart history, yelling Stop. On Thursday, regarding Congresss commerce and spending powers, the Court heard that call and ordered the federal government to stop.
While the Courts recognition that there are limits to Congresss commerce and spending powers is a good thing, this is but one battle in a never-ending fight to maintain liberty. If history shows anything, it is that, over time, governments seek to centralize and accumulate power. Thus, while the Court noted limits on federal power today, there will be attempts in the future to override or evade these limits.
We must remain vigilant. We should strive to avoid relying on the courts to rein in the federal government. We should seek to have a federal government that voluntarily operates within the proper boundaries. The best way to do that is for the voters to elect officials who recognize and value constitutional limits on government power.
Because there will always be another election, the battle will never be over. It is ultimately up to the American people to decide whether the limits recognized by the Court today will continue to be recognized in the future.
Kenneth T. Cuccinelli II is the attorney general of Virginia. In that capacity, he was the first state official to file a lawsuit challenging the constitutionality of Obamacare.
“Because there will always be another election, the battle will never be over”
...human nature dictates that we always look for that “silver lining”. Americans are inherently positive, but this is incorrect. If Obamao wins in November that very well could be the end of elections. This SC decision set a dangerous precedent. I love Cuccinelli. Worked on his campaign here in Richmond, but let’s get real.
Me thinks he is saying: Vote the bastards out on Nov. 6th.
GOP 2012 BATTLE CRY: On June 28, 2012, they shoved ObamaCare down our throat. On November 6, 2012, were going to shove it up their ass.
And now dumbocare can be repealed on a simple senate majority. It is very likely we will have a pubbie senate next January. Whether or not they will have the gonads to actually repeal, against the raging flames and threats coming from the msm, remains to be seen.
“Another thing to note is that Chief Justice Robertss opinion on the taxing power is limited. He noted that it could not be considered punitive because the amount citizens are required to pay for not having insurance is far less than they would have to pay to obtain insurance. He strongly suggests that, if Congress were to require citizens to pay an amount greater than the costs of insurance, that would constitute a penalty, and thus would be unconstitutional. “
So, if you don’t have insurance and pay the penalty, it must be cheaper than the cost of the insurance. That is the silver lining?? What if you want an alternative insurance program (if one is allowed)? The cost of that, plus the penalty will be more than the cost of buying into the obamacare system.
What about courts operating outside THEIR constitutionally defined roles Ken?
Please point out to me the word or phrase in the constitution which authorizes any judge or group of judges to re-write ANY law as the Roberts majority did in this case!
There needs to be some impeachin goin on round here are it’s NEVER going to stop!
My worry now is if even this election in November happens...
From your keyboard to G*d’s ear,...
The Court may have “reminded” the Congress that it has enumerated powers, but then Roberts’ ruling completely and torturously and unconstitutionally ignored those enumerated powers ...
Just ignore those pesky tax labels defined by enumeration - it’s the thought that counts (sarc)
Is obamacare a capitation tax? (er, no)
An excise tax?(er no)
An income (er, no)
Then what is it?
Well, those knuckleheads in Congress obviously “intended” it to be a tax even if they didn’t say so ..... so it is. Thus spake John Roberts.
Thanks to Mark Levin for last night dissecting this line of reasoning so laymen can understand what happened yesterday
The Power to Lay and Collect Taxes:
In a paper entitled The Constitutionality of Mandates to Purchase Health Insurance, Mark Hall, a law professor at Wake Forest, argues that the Constitution grants Congress the power to impose a tax on people who do not have health insurance. Such a tax would be a means by which Congress could enforce its mandate. Punishing those who do not buy insurance with an added tax burden would cause a majority of Americans to acquire coverage.
Such a tax may seem like a legitimate way to discourage individuals from living without insurance but the federal government does not possess such broad taxation powers. Like every other power vested in Congress, the Constitution holds limitations on lawmakers ability to collect taxes. Article I, Section 8 of the Constitution grants Congress the power to collect excise and capitation taxes. The 16th Amendment created a national income tax. But an extra tax burden placed on individuals who choose not to purchase health insurance does not fall under any of these three categories. In a 2009 op-ed written for Politico, Ken Klukowski, a fellow and senior legal analyst with the American Civil Rights Union, writes:
It cant be an excise tax because thats a surcharge on a purchase, and here people are not buying anything. It cant be a capitation (or direct) tax because that is a tax on every person in a state and must be equal for every person in the state; this would be a levy that some people would pay and others would not. And it cant be an income tax because that must be based on personal income, not purchase decisions.
Well Ken you better deliver Virginia
Tax Rebellion, anyone? duh . . . who would pay up front? Just wait till you get sick and then decide. Since they have to cover you with a precondition, why would I pay full rate unless I had to?
Doesn't do much good to say there are limits on how they can kill you after they've just got done killing you.
This article is right on the money. Kate Hicks has a similar analysis that’s an easy read at
People who actualy read and understand these articles should realize that the SC took away the penalty weapon and contrary to Rush’s analysis, it’s just another tax and the IRS will not have new policing powers.
The SC also made clear that it’s up to us to fix get rid of Obamacare in the November election. We’ll get what we deserve!
By this twisted logic, if I rob a bank, but I don't get more money from the robbery than my costs (hiring a wheel man, lookout, safe cracker, etc), than it's not really a bank robbery. OK, that makes sense! *sheesh*
The simple fact that you must play the “What If?” game is a huge silver lining. Every time that game comes up, it’s pretty clear that there will be attorneys getting rich and injunctions abounding.
This ruling is an application of Saul Alynski’s rule
#4. “Make the enemy live up to its own book of rules. You can kill them with this, for they can no more obey their own rules than the Christian church can live up to Christianity.”
IF Roberts’ ruling was truly his view of the constitution and really is playing a “longer” game, then what he basically said is...
“If you elect tyrannical morons who want to tax you, then you get what you voted for”.
I still am not sure I am buying all this retcon on Roberts as genuine, but in reality, conservatives are paying the price for not being as engaged and involved as liberals over the years in nuts and bolts, grassroots level-full spectrum work. Libs took over education, journalism and hollywood, which has paid off over decades in the “long game”.
I truly hope Roberts is really playing 3D long form chess, but I’m not buying it out of blind faith.
The bus is still headed to the same cliff, just a matter of how fast either party drives or which route they take.
**The Court reminded the federal government that it has limited and enumerated powers.**
Certainly. How about the FREEDOM of not having to buy ANY insurance, and not having to pay ANY fine?
What if someone is married to or has a close relative who is a physician? Herbal healer? Christian Scientist?
FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.