America’s federal system is dead unless the Supreme Court throws out President Barack Obama’s healthcare overhaul, one of its leading opponents, Virginia attorney general Ken Cuccinelli, told Newsmax.TV after the first day of arguments in the case.
Instead the federal government will have “limitless power,” Cuccinelli said in an exclusive interview. “That’s why I often tell people this case is about liberty not healthcare.
“If they can order you to buy this product, they can order you to buy any product.”
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Cuccinelli was in court for the opening day when the justices heard arguments on the Anti-Injunction Law – whether penalties for not buying health insurance should be considered a tax. If they are a tax, the law says arguments against them can’t be heard until they are paid, effectively meaning the whole case on the constitutionality of the law would have to be postponed.
He, along with most observers, believe that is an unlikely scenario and the court will make a decision on the law as a whole this summer.
Cuccinelli, a Republican, said he remains “cautiously optimistic” that the individual mandate part of the law will be thrown out, but he stressed, “It’s not a slam dunk for either side.
“I have had the same perspective on the likely outcome all along,” said Cuccinelli, who has already said he plans to run for Virginia governor in November. “That is simply that we’re more likely than not to win it. I’d bet on us, I just wouldn’t bet everything.
“This is very uncertain territory that we are in. You have a case unlike any other in the history of the country with such a massive grab for power by the federal government.”
But he said federal power grabs have historically been successful when they have been considered by the Supreme Court and “that should be cause for some nervousness.”
But Cuccinelli is heartened by the fact that the man who many see as the deciding vote in the case, Associate Justice Anthony Kennedy, has been “a very consistent protector of what’s cause structural federalism, that’s structure of the Constitution that separates the federal power from the states’ power.”
He said he feels it would be a dramatic shift for Kennedy to rule that the Commerce Clause of the Constitution covers the law's order to buy insurance as it would involve interstate commerce.
Cuccinelli said the fact that latest polls show more than half of all Americans are opposed to the healthcare law should not affect the judges in their decision.
“They should decide on the law and the Constitution and that is it. That is absolutely it.
“Frankly, part of the problem with some previous rulings of the Supreme Court appears to be they were taking other considerations into account. We want judges who will do nothing but apply the law as it was written and originally understood.
“For instance in the case of the Constitution, liberty doesn’t evolve, laws don’t evolve, they get amended. That’s all that should happen and that’s all that judges should do and I hope that’s what they’ll do in this case.
“In this case the states are suing the federal government to protect the U.S. Constitution from the federal government.”
Now, Cuccinelli said, he is looking forward to Tuesday’s arguments when the attention turns to the question of the constitutionality of the individual mandate. If the justices agree it is unconstitutional, they should throw out the rest of the law as well, he said.
“This would ever have become law without the individual mandate, that’s very clear. They had no votes to spare in the Senate and only three in the House.”
But he said, despite hopes that the Republicans can retake the Senate in November, he is not confident they will have sufficient votes to repeal the law if the judges side with the Obama administration. “You have to get 60 votes to get complete repeal in the Senate and that’s an awfully high hurdle to get to.”
He said senators didn’t even mean to pass the law as it now stands. They passed a version loaded with pork projects that they expected to be kicked back by the House to be cleaned up.
But that idea died when Massachusetts elected Republican Scott Brown to fill the seat of the late Democrat Ted Kennedy. “They couldn’t send it back from the House because the Republicans had 41 to filibuster and kill it.
“It was an ugly bill when it was born and it was never expected to become law in the form it’s now written. It has so many errors in it and, of course, more egregious than that, it has constitutional violations.”
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