Thursday, March 24, 2011

The softer side of Attorney General Cuccinelli – Part Three

"I could have done some things better."

Virginia’s Attorney General Ken Cuccinelli says he could have done better. By better he specifically meant affordable health care.

“I could have done some things better in that respect … I need to remember the human element. It isn’t just about the constitution – it is about getting that kid covered. Those elements are very real,” said Cuccinelli.

In the Senate he says he attempted to address those kinds of problems by letting Virginians buy insurance policies anywhere. “People just don’t know that they can’t buy a policy from another state,” he said.

States compete on everything else but not on health care insurance. He ran headlong into special interests in the insurance industry that to no surprise resisted anything resembling competition. . “We completely insulated our market for competition,” he said.

“One of the things that drove me nuts after 2006 when the Democrats took control of congress and I watched Republicans. Oh, we need to do A, B, and C. What did we do for six years when we controlled congress and the senate and the White House? That has driven me bonkers,” said Cuccinelli.

Cuccinelli called the last ten years a meat tenderizer. “ I think we all have been put through the ringer on inaction on health care,” he said. He is confident that the 2700 page Patient Protection and Affordable Care Act will be defeated in the Supreme Court. “The bigger [PPACA] is the more opportunity for unintended consequences,” he said.

He expects the 4th Circuit Court of Appeals to hear the case sometime in July and if he loses Cuccinelli will appeal to the Supreme Court. If the federal government loses he believes they will probably try to slow it down with another review that would push it to November. That could push it to Jun 2012. The court of appeals will argue on May 10th.

The uncertainty is whether Virginia will have its own case (mandate constitutionality only) or will Virginia be lumped in with Florida or crammed in with all other states. Running cases with other people especially other statewide elected officials is a new experience for Cuccinelli. There are four lawyers in his office working on just this case.

If the federal government fails in their “commerce clause” argument the  fall back is that the health care mandate is a tax rather then a penalty. If it’s a tax under that power then it saves the provision. They are 0-6 on federal courts who have ruled on that. “I don’t believe a single judge or justice in America will rule that penalty a tax,” said Cuccinelli. “It’s truly radical – if that is all they have to do then congress could do anything,” he said.

Cuccinelli is not accustomed to the slow pace of both the EPA and health care cases. “I was conditioned in the private sector to move … in state courts Fairfax is the ‘rocket docket.’”

He doesn’t expect the case to drag on past 2012. He believes the judges at every level want to handle the case the same as any other. “They don’t want the appearance of impropriety,” said Cuccinelli.

To implement the PPACA will be costly and time consuming. Cuccinelli hopes that congress will be looking ahead. The Democrats left out a severability clause (if the mandate is struck down then the entire bill dies). “That’s why it is so important to me that congress be thinking ahead saying OK what can we implement if this goes down. I don’t think they should wait,” said Cuccinelli.

Attorney General Cuccinelli on elder abuse – Part One

Attorney General Cuccinelli on testifying before congress – Part Two

Posted By Valerie Garner

Categories: National, Politics, State Politics

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[…] If this case does not satisfy that standard, it is difficult to see what case ever could. The issue is a pure question of law. Every district court that has reached the merits has rejected or declined to rule on the Secretary’s taxing power argument while concluding that the claimed power under the Commerce Clause is novel or unprecedented. (The Federal Government’s fall back argument that it is not a penalty but a tax.) […]

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