Tag: Cuccinelli

Cuccinelli Corrects an Injustice

Virginia Attorney General Kenneth Cuccinelli reviewed the evidence and concluded that one Thomas Haynesworth had been wrongly imprisoned–so he persuaded Governor Robert McDonnell to grant him parole.  Not a full vindication, because Haynesworth still has a felony record, but freedom.  Remarkably, Cuccinelli went still further and added Haynesworth to his staff while promising to work to clear his name and wipe his record clean.   David Keene has the full story here.

Does Virginia Even Have Standing to Challenge Obamacare?

As I described yesterday in the context of Cato’s latest brief, Virginia’s challenge to the constitutionality of the individual mandate is now on appeal before the Fourth Circuit (the federal appellate court that covers Maryland, Virgnia, and the Carolinas).   Before the court even considers the constitutional merits, however, it must confirm that the state has standing to bring the lawsuit in the first place. 

Indeed, two amicus briefs filed by some law professors argue that the state does not have the legal power to challenge the constitutionality of Obamacare.  But Pacific Legal Foundation attorney and Cato adjunct scholar Timothy Sandefur filed a brief responding to those briefs and arguing that Virginia does have standing to bring the case.

Here’s the issue:  Article III of the Constitution only lets federal courts hear “cases and controversies,” which means that a plaintiff – whether an individual, a state, a corporation, or any other entity – must have been actually harmed in a way that courts can address.  For example, courts can’t review abstract political arguments or give advisory opinions.  Here, Virginia argues that it’s been injured because it passed a Health Care Freedom Act that prevents citizens from being forced to buy health insurance – which is obviously in conflict with the individual mandate.

The professors say, in contrast, that states can’t pass laws that conflict with federal law as a means of getting in court and challenging the constitutionality of the federal law.  They point to Massachusetts v. Mellon, a 1923 decision that said states don’t have the “duty or power to enforce … [citizens’] … rights in respect of their relations with the Federal Government.  In that field it is the United States, and not the State, which represents them as parens patriae….”  They argue that the “the state’s interest in enforcing its legal code must necessarily give way to federal law whenever a conflict arises,” and that “[m]anufacturing a conflict with federal law cannot of itself create an interest sufficient to support standing.”

PLF’s brief explains, however, that states have had the power to do precisely that since at least McCulloch v. Maryland, the 1819 case that upheld the constitutionality of the national bank (and which is central to the Necessary and Proper Clause analysis at the heart of the larger constitutional debate over Obamacare).  In McCulloch, Maryland passed a law taxing the bank simply to give it the ability to challenge the bank’s creation in the Supreme Court.  Although the Court found the bank constitutionally kosher, it never denied that the state couldn’t raise its claims.  And the Supreme Court has allowed states in many other cases to challenge federal laws that intrude on their constitutionally retained sovereignty.

In South Dakota v. Dole (1987), for instance, the Court allowed the state to challenge the constitutionality of laws that infringed on the power to regulate alcohol consumption (by tying federal highway funds to states’ raising their drinking age to 21) – a power that the Twenty-First Amendment leaves to states.  If states can defend powers retained by the Twenty-First Amendment, why can’t they defend powers retained by the Tenth Amendment? 

And states should have the power to bring these lawsuits, because the Founders intended for states to serve as a check against Congress going beyond its constitutional authority.  In Federalist 46, for example, Madison assured skeptics that states would have “means of opposition” against federal overreaching, and those means would include “the embarrassments created by legislative devices.”  States are supposed to defend their turf in the federal constitutional scheme.  As for cases like Mellon, PLF argues that these cases involved “political questions” and so were not rulings about standing: in those cases the states weren’t really exercising their sovereign powers.  But in this case, Virginia has clearly exercised its sovereignty by passing the Health Care Freedom Act.

Interestingly, one reason PLF argues that states should have standing to bring these cases is because there’s some question whether individual citizens are allowed to bring Tenth Amendment challenges.  That question will be resolved this term in Bond v. United States, a case in which Cato filed an amicus brief in December.  If individuals are hard-pressed to defend the federalist structure, then states certainly should be able to.

In short, PLF’s brief (which was also filed on behalf of Americans for Free Choice in Medicine and Matt Sissel, PLF’s client in a different Obamacare case) makes a complicated but crucial argument supporting states’ ability to defend federalism by challenging the constitutionality of federal overreaching.  More at PLF’s blog.

Cato’s Latest Obamacare Brief: Congress Cannot ‘Commandeer the People’

A recent poll showed that 22% of Americans believe Obamacare has been repealed and 26% aren’t sure.  Yet here at Cato, we’re all too aware that the massive, unconstitutional, and fundamentally unworkable overhaul of our health care system still looms on the horizon.

While two lower courts have struck down Obamacare in whole or in part, three others have ruled it constitutional, including a D.C. District Court opinion that claimed for the federal government the right to regulate the “mental activity” of decision-making.  As litigation progresses to the appellate level, this latter decision has proven to be more a hindrance to Obamacare’s supporters than a help, its Orwellian pronouncement being hard to ignore while the government downplays the significance of the power Congress is asserting.  Nevertheless, Obamacare’s constitutionality—with a focus on the individual health insurance mandate—remains an open question until ruled upon by the Supreme Court. 

Cato’s latest amicus brief is in the Fourth Circuit, in the case brought by Virginia Attorney General Ken Cuccinelli.  In this case, unlike in the Sixth Circuit (in which we also filed a brief), it is the federal government that appealed an adverse district court decision that struck down the individual mandate.  In our brief, joined by the Competitive Enterprise Institute and Prof. Randy Barnett (the intellectual godfather of the Obamacare legal challenges, and also a Cato senior fellow), we argue that the outermost bounds of existing Commerce Clause jurisprudence prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce.  Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme.  

Allowing Congress to conscript citizens into economic transactions is not only contrary to existing Commerce and Necessary and Proper Clause doctrine—as broad as that doctrine is—but it would fundamentally alter the relationship between the sovereign people and their supposed “public servants.”  The individual mandate “commandeers the people” into Congress’s brave new health care world.  If Obamacare is allowed to stand, the only limit on federal power will be Congress’s own discretion.

The case will be argued before the Fourth Circuit in Richmond on May 10.  Read more from Prof. Barnett on Obamacare here and check out the half-day event we recently held on the legal and economic problems with the law.  Finally, though his name isn’t on our brief because he hasn’t yet become a member of the bar, many thanks to legal associate Trevor Burrus for his work on it.

Journalists Warn of Regulation’s Costs

All too often, news stories about proposed new regulations mention all the supposed benefits of the regulation while ignoring such potential costs as higher prices, reduced service, or even the demise of the business. Today I’m glad to see journalists noting those costs right up front in their discussions of a new regulation proposed by Virginia attorney general Ken Cuccinelli. Public radio WAMU says:

Currently there are 21 abortion clinics in Virginia. Abortion service providers say at least 17 of those might shut down if state officials use their authority to regulate those clinics.

Attorney General Ken Cuccinelli says abortion clinics provide many other medical services beyond abortions, so they’re subject to the same regulations as larger medical facilities.

That opinion was issued in response to a request from Virginia State Senator Ralph Smith, who says his only interest is to protect the health of the patient.

“I certainly feel that for the safety of all involved that they should be as regulated as other procedures,” says Smith.

For most clinics, meeting a higher regulatory standard could mean additional equipment or space renovation.

Tarina Keene director of NARAL Pro-choice Virginia says the cost involved could drive some clinics out of business.

Yes, indeed, they noted those potential costs right there in the first line. And so did the Washington Post, front page, third sentence:

Virginia Attorney General Ken Cuccinelli II has concluded that the state can impose stricter oversight over clinics that perform abortions, a move immediately decried by abortion-rights organizations and others as an attempt to circumvent the General Assembly, which has repeatedly rejected similar measures.

Cuccinelli’s legal opinion empowers the Board of Health, if it chooses, to require the clinics to meet hospital-type standards. Abortion-rights advocates say that could force some clinics to close because they would be unable to afford to meet the new requirements.

Now if only we could get journalists to take such prominent note of the costs that new regulations impose on other kinds of services, from lemonade stands to local restaurants to for-profit colleges to internet service providers.