Ken Cuccinelli: ‘Silver linings’ in health-care ruling
I am disappointed in the court’s ultimate decision today. Virginia’s legal argument has always been that there was no constitutional basis for the federal health insurance mandate, and that the health care law should be struck down in its entirety. The court’s decision has saddled us with a budget-busting health care law that will most assuredly increase health care costs and thrust a new tax on the American people.
The federal health care law was upheld by the court because, contrary to the language used by Congress and contrary to the repeated statements of the president, the court decided that the money one must pay for failing to comply with the insurance mandate should be considered a tax, and a tax is within Congress’s authority. Thus, those who support this law and who voted for it are now and forever on record for supporting this tax increase – a position they refused to admit when passing the bill.
And it only takes 51 – not 60 – votes in the Senate to pass (or repeal) a tax bill.
Now that the court has declared this a tax, its ruling effectively prevents Congress from using similar schemes to raise taxes while trying to hide them from the American people by calling them by another name. From our founding, the American people have been hostile to excessive taxation. Thus, future Congresses will have to engage in such schemes at their electoral peril.
My initial reaction when the decision was announced that the insurance mandate was upheld was that it was a dark day for the Constitution and for American liberty. However, upon analyzing the 193 pages of opinions from the court, I contend that – while I do not agree with the majority’s result – there was a silver lining in that the court affirmed that the Commerce Clause – the constitutional vehicle the federal government was attempting to use to compel citizens to buy health insurance – only allows Congress to regulate people who are currently engaged in commercial activity. In this way, the court affirmed that there ARE constitutional limits to Congress’s power. This represents the court’s first express acknowledgement of the actual limits on the federal government’s commerce power since the New Deal.
In addition to affirming that there are limits on Congress’s Commerce Clause power, the court also has made clear that there ARE limits on Congress’s spending power. 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 program expansions mandated under the health care law. This alone could save the commonwealth about $200 million a year — money which would have to come from new taxes or other already stretched priorities, such as state education and transportation funding. At the same time, health care for Virginia’s poorest citizens will still be covered by Virginia’s existing Medicaid program.
This, too, was the first time the court has found any limit on Congress’s spending power since the New Deal.
From the beginning of Virginia’s challenge, I have maintained that the health care cases were about liberty, not about health care. We have argued that the Constitution did not permit Congress – under the guise of regulating commerce – to order a citizen to buy something. Today, a majority of the court agreed with our position. Writing for a majority of the court, Chief Justice Roberts recognized that
“The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years, both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.” [Emphasis in the original.]
Although this bad law was allowed to stand, in the end, the court has found some very clear limits to Congress’s authority do exist.
Ken Cuccinelli is the attorney general of Virginia.