Commerce clause can’t require insurance, (VA Attorney General) Cuccinelli says

[Ed Barrow]

Source: Richmond Times-Dispatch

The Commerce Clause of the U.S. Constitution does not extend to people who, under Virginia law, are not obligated to buy insurance, Attorney General Ken Cuccinelli argues in a 41-page response to the federal government, filed this afternoon in U.S. District Court in Richmond.

Cuccinelli's office filed its response to the federal government's motion to dismiss the attorney general's lawsuit challenging President Barack Obama's health-care reform legislation.

"If the government prevails, and Congress may use the Commerce Clause to order Americans to buy private health insurance, then Congress will have been granted a virtually unlimited power to order you to buy anything," Cuccinelli said in a statement after his office filed the response.

"That would amount to the end of federalism and our more than 220 years of constitutional government," he said.




Read more: http://www2.timesdispatch.com/rtd/news/state_regional/state_regional_govtpolitics/article/CUCCGAT07_20100607-165401/349631/

[Hawkeye-X]

1. Circumvent the US Constitution, and you will be thrown out, maybe even recalled

on your next re-up.

Just shut your fat ass and resign, and take McFuckwit with you.

Hawkeye-X

[GodlessBiker]

2. It can if the Supreme Court says it can.

[24601]

7. During the depression, USSC upheld a law that prohibited growing

private subsistence crops because of their effect on the rest of the agriculture economy. I am not aware, however, of any precedent that upholds any law specifically requiring purchase of a product when it isn't pursuant to a privilege like driving. Love it or hate it, it's a great constitutional question that fundamentally cuts to the core of individual freedom verses common good. Once resolved, Congress can proceed to either fine tune it or start over. So expedite the case to the USSC before more time is wasted.

[No Elephants]

28. Requiring purchase of a product rom a private vendor (as opposed to

the government) could be a problem.

[fasttense]

30. But in our freaky, messed up economy,

in order to have the privilege of living to a ripe old age, you need health insurance. Of course you have to see living (or in neocon terms allowing others to live) as a privilege unto itself.

"Any precedent that upholds any law specifically requiring purchase of a product when it isn't pursuant to a privilege like driving."

[The Croquist]

75. I disagree

I think you are referring to Wickard v. Filburn.

In the case Filburn was raising livestock that he intended to sell. Because of that the Supreme Court ruled that he was impacting interstate commerce. Health care is about personal choices. There is little comparison.

In my opinion Wickard v. Filburn was a terrible decision. To tell someone that they can't use the property that they bought as they see fit is absurd. I'm all for environmental protection but Filburn wasn't stopped for environmental reasons. He was stopped because they wanted him to buy something that he could produce himself. It is a precedent for telling people that they can't have a vegetable garden, mow their own lawns, paint their own house, cook for themselves or sew their own clothes.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=111

The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

[depakid]

3. This fundamentalist nutter would say anything

I rather feel sorry for the clerk who has to read 41 pages this garbage.

[The Hitman]

4. Don't

Federal Judicial clerks make decent money, and one in a District like this will have tons of job opportunities at the end of his/her term, especially compared to the thousands and thousands of unemployed law grads.

[Bitwit1234]

5. Well then we don't have to buy car insurance anymore do we.

How about any law..we don't have to follow that, or can this AG from Virginia twist it around to only apply to the things he wants to ban.

[Duchess]

6. Car Insurance isn't mandatory.

If you don't have a car then you don't need insurance.

So, your argument doesn't apply.

He is legally challenging the law...which is legal.

[JDPriestly]

10. Neither is the health insurance.

It just makes better financial sense to buy it. If you opt out, you don't get as good a tax deal. I might be wrong, but that is my understanding.

[Duchess]

14. My understanding is that...

if you don't get insurance you get fined. I'm not sure if that is easily enforceable.

[davidinalameda]

19. your understanding is incorrect

[No Elephants]

29. Fine, more taxes. Potato, potahtto. A distinction without a substantive difference.

[Hassin Bin Sober]

40. Are people who don't own homes and take the tax deduction being fined?

Does the mortgage tax deduction, or fine if you will, "force" one to purchase a home?

[Statistical]

44. There is no deduction for having health insurance.

They is an additional punitive tax.

Just like taking money from your 401K or IRA. There is no deduction for NOT TAKING money from your 401K there is a punitive 10% tax done with the intent so people won't tap their 401K/IRA. It is a punitive tax and HCR mandate is no different.

Having health insurance does not lower your taxes at all. Not having health insurance subjects you to a fine in form of a tax.

[24601]

62. There isn't now - but there could be. And it should be crafted as a

refundable credit vice a measly deduction from taxable income. Congress did it with home-buyers and could do it with health care.

[YewNork]

43. You do get fined, but the fines are lower than the cost of insurance

So, there are some people who will simply choose to pay the fine.

Sort of reminds me of a town that issued parking tickets for $10 when the cost of parking in the local parking lot was $15/day.
It was cheaper for people to park illegally and just pay their tickets, rather than pay the $15 to park legally.

[Uncle Joe]

47. I suspect the fines will be raised in due time. n/t

[24601]

63. But with the HC fine, you still don't get coverage. Now, if they took

the fine and applied it to HC, they could dump them all into a special pool for resistors. They could get not only HC, by re-education as well.

[eridani]

18. It makes no financial sense at all to buy it from private entities

--that profit from mass murder.

[area51]

23. +1

We need single-payer health care, not a welfare bailout for the serial-killer insurance agencies.

[Uncle Joe]

49. No financial or moral sense, it creates a cash flow loop sending money back to the

Congress from those entities profiting from mass murder.

[karynnj]

38. My understanding too - but, they did not really push it this way because they did not want to say

"tax". It also is a pretty fair tax because almost all of the people who "opt" not to have insurance will still go to the hospital if they are very ill or injured and much of that will be absorbed by the hospital and the public.

[Alcibiades]

12. It is legal

but also stupid.



The commerce clause is the broadest grant of power to congress in the US Constitution. These folks are litigating issues that have been a matter of settled law since the 1930's. Though he claims to support federalism, I suspect he would have been an Anti-Federalist: we know how that turned out.

Actually, it occurs to me that many folks may not know how that turned out, which is why it is possible for him to argue this ridiculous position in the first place.

[Duchess]

13. From his perspective it doesn't really hurt to try

The case will probably get dismissed but it is how we legally address disagreements/grievances.

[Alcibiades]

21. It's frivolous

This kind of political grandstanding is frivolous, except to the extent that Cuccinelli will use it to win reelection, which serves his interest more than that of the good people of the Commonwealth. Cuccinelli apparently wishes to return to the Lochner era or, even better, to the Articles of Confederation. Congress has actually forced every wage earning American to participate in an insurance program: OASDI. If his argument wins the day, the Republican idea of an individual mandate to buy insurance would not be constitutional, but a public option would be--if that's not the case, then he ought to have the honest to come out and announce to the old people of Virginia that he's against their getting monthy checks from the government as a matter of principle.

[No Elephants]

32. OASDI does not require Americans to purchase anything from private vendors.

[Alcibiades]

50. True enough

If that's the problem, then the solution would be to institute a public option, which is not Cuccinelli's preferred solution.

[Statistical]

45. It is part of seperation of powers and checks and balances.

Requiring citizens to purchase goods from private companies have never been done before under CC. Maybe it is Constitutional. Maybe the courts will be reluctant to push CC that far. It is a question for the courts.

Personally I am wary of this precedent.

If govt can require you (under financial penalty) to purchase Health care they can require you to purchase anything. They can also make the penalty any amount. If 10 years they could make the penalty for non-compliance $10,000 per year or $20,000 if they find compliance too low.

Not enough movie purchases due to "piracy". No worries we will just force you to buy 10 movies per year. The fine for not doing so is $500. Consequently price of movies rises to $49.95.

[Alcibiades]

51. Separation of powers and checks and balances

refers to something else (unless you're here referring to the ability of a state AG to sue the government, which is more of a federalism issue than one of sep of powers & checks & balances, which are usually thought of as the proscribed relationship between the three branches): the issue here is an enumerated power of Congress.

The mandate in the HCR package was carefully structured as a tax incentive, based on the broad constitutional authority vested in Congress to tax. While it is debatable whether this would be the best way to do this (I would have preferred single payer), it should pass constitutional muster. If you object to this, you should also object to all the other nonsense in the tax code: for most of my life, as a single, renting, wage-earning young person I paid more into the system than I got back. Today, as a married homeowner with two kids, I engage in all kinds of behavior that is subsidized by the tax code. Fair? Perhaps not, but for a Republican--any Republican--to today object to providing incentives or disincentives through the tax code is laughable, because that has been their political program for over 40 years.

[Sherman A1]

24. Agreed

To think that there would not be legal challenges to such a sweeping piece of legislation is foolish. I think it important to challenge it and get those challenges resolved one way or the other by the courts, so that we know where we stand and can move on to a hopefully better system.

[No Elephants]

31. Please remind me: Which cases held the federal government has power

to require all Americans to purchase something from private vendors?

[Alcibiades]

52. That's not in the law

Please quit repeating right wing talking points: it only encourages them.

[Statistical]

53. Please that is a dubious distinction.

Saying you don't have to buy Health Care is like saying speeding isn't against the law it is simply a tax incentive.

"The govt is simply providing a tax incentive for those who choose to travel at less than 55 mph".

By that logic nothing is required and nothing has fines.
BP is simply choosing to voluntarily avoid the $4000 per barrel tax deduction for not pouring oil into the Gulf.

The intent matters.

There is no deduction for health insurance. I have health insurance. My taxes will not decrease a single penny under the law.

There is a mandate to purchase private goods from third party and the govt will enforce that via a system of punitive taxes for non-compliance.

Put all the sugar you want on that shit sandwich you aren't going to change the taste.

Never before has CC been stretched this far. While courts *may* agree with Congress it is certainly the right of any citizen (even AG) to sue the government on the Constitutionality of this provision.

[Alcibiades]

59. That's your opinion

The difference between speeding and health care is that no one has to speed, but we will all eventually use the health care system. It has been the Republicans who have pioneered social engineering through the tax code, so it is absurd for them to come out now and claim it's unconstitutional. The commerce clause gives Congress the right to give money to farmers to not grow crops, thereby making the food we buy more expensive. I would have much preferred single payer, personally, and as a matter of good public policy, but I'm not going to adopt a restrictive interpretation of the commerce clause simply because I don't like the health care reform law.

[SkyDaddy7]

26. That is not exactly true...

Sure you don't have to buy auto insurance as long as you don't want to have home or feed your family...Most people in the US do not have access to Public Tnsportation so it is mandantory for most Americans.

So, YES the arguement does apply to most working Americans.

[No Elephants]

33. Still,, you don't have to commit suicide, which is the only way out of the health insurance mandate.

You can walk, get a co-worker to help you out, hire a limo, move nearer to public transportation, etc.

You have alternatives other than public assistance or suicide.

[Statistical]

46. There may not be conveinent choices but you always have choices.

You could carpool, or you could 0nly have one car per family (reducing insurance costs in half), or you could us public transportation, you could move within walking/biking distance of your job.

Now nobody said these are easy choices. You don't have a right to easy choices but you have choices.

[SkyDaddy7]

58. How about something I think we all can agree on...

I wish we would get the fuck off oil and build more Public Transportation!!!

[24601]

27. To approach it differently might negate the constitutional issue.

The power to levy a general tax on incomes in not constitutionally disputed. So congress could pass a $5000 tax on all incomes above $10,000. Then a $5000 tax credit could be added for those with approved health care plans.

The problem is that they wanted to avoid the appearance of a tax by calling it a fine. And it's like your spouse, whenever you're arguing and he/she says, "Well, FINE!", you're F*@%ed!

[No Elephants]

34. You don't think the SCOTUS can see through or collapse a "step transaction?"

IMO, if there is a Constitutional issue to begin with, step transactions, calling something a tax rather than a fine and the like will not eliminate the Constitutional issue.

[YewNork]

37. No car means no requirement for car insurance?

Then get rid of your body and you can get rid of the requirement for you to have health insurance.

But as long as you are potentially able to get sick and need medical care, then you need health insurance.

[No Elephants]

41. Needs of individuals are not the issue.

[24601]

61. Not a good analogy since driving is not a right. Controlling your

own body is, however, a fundamental right - unless you are overturning Roe. And if you can refuse treatment, why would you not have the right to decline paying for non-treatment.

As I said earlier - expedite to the USSC. Congress should have written the law to give the USSC original exclusive jurisdiction so to settle things sooner rather than later.

[The Croquist]

73. What you said isn't quite true

You can buy a vehicle without insurance. You just can't operate it on a public road. You can use it on your own property all you want. You can also buy off road fuel that doesn't include highway tax if you want. Farmers and bulldozer operators do it all the time. If on the other hand you operate a vehicle on a public road without insurance or with off road fuel you are in a world of hurt.

[rapturedbyrobots]

17. you don't HAVE to buy car insurance

because you don't HAVE to own a car.

this is a tired and completely useless analogy.

[Bette Noir]

25. You don't have to buy health insurance, either.

You just have to pay a small extra tax to help offset the cost to the gummint of covering your hospital bills if you get sick.

If the administration weren't so dang conservative, I'd think this was a quiet way of sneaking in single payer. I'd opt to pay a small tax (as they do in Canada) if I could see a doc when I needed to.

[No Elephants]

36. Please see Reply ##s 29 and 34.

IMO, it all depends on whether the neocon Justices want to blow up health care or not. If they do, they will not close their eyes to the artifice. If the do, they will. It's that simple.

At the very bottom, the outcome will have a lot more to do with politics than with precedent. Sadly, that's been true of the SCOTUS for a long time. Maybe it always was. I don't know.

[ProudDad]

8. Job of Atty' General of Virgina can't require brain cells...

"I find that my lack of intelligence, legal knowledge or even good taste shouldn't disqualify me for the job." Ken Cuccinelli(Cooch-a-nelly) said yesterday.

In addition to the health care suit, Mr. Cuccinelli (Cooch-a-nelly) also argued that the commerce clause cannot be used to force corporations to pay fines for oil spills, for creating environmental disasters or killing customers nor to force any inspection of food, drugs and other products.

"The Commerce Clause should only be invoked against anyone who hinders commerce, truth, justice or the American way."

Mr. Cuccinelli (Cooch-a-nelly) then climbed into his conveyance and moved on down the road...

[JDPriestly]

9. I don't think Congress is relying on the Commerce Clause.

I think they relied on the Tax and Spend clause. They can give tax credits or deductions to those who get insurance. Nobody is forced to buy insurance under the law as I understand it.

[msanthrope]

15. You are correct. It's an excise tax, and states can opt out. n/t

[Statistical]

54. There is no credit or deduction for health insurance.

That is the point.
Congress wanted to raise money not provide tax relief for those with health insurance.

[The Croquist]

74. What "Tax and Spend clause"?

I'm not familiar with it.

The 10th amendment seems to limit the Federal Governments powers:

Amendment X - Powers of the States and People.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Hosnon]

11. I think the Commerce Clause is interpreted too broadly.

I support healthcare reform and think Congress should have the authority to enact the mandate. But I don't want to see the Commerce Clause broadened.

[quaker bill]

16. It is not interstate commerce

as long as you do not leave the state and then get sick. Or if you do get sick out of state, you delay getting care until you get home. This, I think, is not entirely practical. However, if he can guarantee that no citizen of Virginia will ever seek healthcare anywhere but Virginia, then he has a leg to stand on.

[christx30]

22. How can they use

the clause about interstate commerce when it's illegal for insurance companies to sell over state lines?

[No Elephants]

42. PLease see Reply #7 re the private veggie garden being under the Commerce Clause.

You can hardly get more local than growing veggies in your own garden for your own consumption.

Of course that case was decided after FDR's "court-packing plan." It's over 75 years old now and coud be overruled, I guess (as could any case, of course). But overruling it could mess up a lot of legislation.

[Hosnon]

70. And that is a perfect example of why I think the Clause is too broadly interpreted. nt.

[depakid]

64. "if he can guarantee that no citizen of Virginia will ever seek healthcare anywhere but Virginia"

Even then, he has no leg to stand on.

Congress has the power to regulate activities that have a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce) and health care without question falls within that standard.

No matter how one looks at it- unless 5 members of the Court are willing to cripple Congress' ability to address a very wide range of activities and thereby Balkanize the US economy by overturning long settled precedent and place thousands of federal laws and regulations into question the mandate is constitutional.

Whether or not the mandate is good public policy- whether or not people like or don't like it or ostensibly "agree" with the fundy from Virginia has no bearing on its legality.

That said, 5 members of this court have at times shown themselves to be quite devoid of any independent legal or ethical principles- so one is hard pressed accurately gauge what they might do in pursuit of their dysfunctional and destructive ideology.

[The Croquist]

78. I just wish they would read the Constitution

Amendment X - Powers of the States and People.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


I see nowhere in the Constitution that says that the Federal Government has the right to require that people buy health insurance. Yes according to Article 1,Section 8, Clause 3 they are allowed:

To regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes

But We are not talking about interstate commerce here nor are we talking about regulation. We are talking about the government telling individuals what they have do and I don't see where they have that right. Do they have the right to order me to go pick cotton for free in a field? That counts as Interstate trade doesn't it?

Nor does it matter if a citizen of Virginia ever seeks health care anywhere but Virginia. I am not responsible for the actions of my fellow state residents. If so both you and I could be arrested anytime the Feds wanted.

[beevul]

80. Since when...

"Congress has the power to regulate activities that have a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce) and health care without question falls within that standard."

Buying something, is an activity.

Not buying something, is not.

Unless one turns definitions - the meanings of words - on thier ears.


Someone - our hypothetical someone - has purchased no insurance. Therefore no activity effecting interstate commerce exists to begin with, where the act of buying or not buying insurance is concerned.

To attempt to compel commerce where none existed to begin with...is a bastardization of the commerce clause, to be sure. And so is any case law that supports it.

[SoapBox]

20. Just bar him from ANY kind of insurance...

and then let the party begin!

Disease...Car wrecks...house fire...

Take your pick! But Mr. McGoofy, you will be
the first one barred from having insurance...let
the dice roll and let's see what happens to you.

[The Croquist]

79. So exactly how does the Federal government have the right to bar him from buying health insurance?

It sounds like you are in favor of the Federal government punishing people for disagreeing with them. One day the Republicans will be back in power. Is that a power you want to give them?

[Zynx]

35. If anyone on DU sides with this anti-gay bigot, I will know the world has ended.

[robcon]

39. Huh? The world has ended then, Zynx

I don't care who made the argument. It's a cogent argument - that Congress can't force individuals to buy something.

[depakid]

48. It's only a cogent argument to people who know nothing about Constitutional law

but instead, react using their emotions.

[Statistical]

55. Name another purchase from private enterprise that has been mandated under federa law. n/t

[Lord Magus]

76. Guns and ammunition.

Mandated by a bill that George Washington singed into law.

[Abq_Sarah]

56. Emotions?

No, I'm just trying to figure out where the Constitution states the federal government can mandate the purchase a product from a private company. That is a road we do not want to go down.

[depakid]

60. The legal analysis under the controlling case law can be condensed to this:

Congress may regulate activities that have a "substantial effect" on interstate commerce, and courts look to the commercial nature of the activity and to the connection between the activity and interstate commerce (among other considerations).

An individual mandate is commercial in nature--it requires folks to buy health insurance. Hence a commercial exchange and one closely related to interstate commerce. The whole argument for an individual mandate is to get "health care consumers" to internalize their costs, and not spread them to the larger interstate economy, while attempting to create efficiencies through expansion of the risk pool.

Whether Congress calls it an excise tax, fee, or mandate to buy a product- or something else is immaterial.

[Abq_Sarah]

65. And what is to prevent them

From mandating that I must purchase an automobile every two years? Think of how much that would help the auto industry.

[depakid]

66. Completely different deal

Health care may not be sui generis, but it does have certain qualities that make it quite different than other industries- namely that people cannot reasonably not participate in it, and thus a mandate here is actually an attempt to internalize costs that are already spread out into the system of "healthcare commerce."

It's analogous to mandatory fees for garbage collection or pollution abatement in that sense.

[Abq_Sarah]

69. You actually kind of make my point

This can be applied to any product the government wants you to purchase in order to meet a higher goal.

Want to reduce greenhouse gases? All Americans will be mandated to purchase new vehicles with a minimum MPG rating of X.

[beevul]

81. Once again...

"Congress may regulate activities that have a "substantial effect" on interstate commerce, and courts look to the commercial nature of the activity and to the connection between the activity and interstate commerce (among other considerations)."


When an individual does not buy health insurance, he/she is not involved in an activity, in not buying it.

Attempting to compel commerce where none previously existed, is a bastardization of the commerce clause.

Nothing else is relevant.


I mean, hey, you non smokers...you NOT buying tobacco effects interstate commerce too, right? :eyes:

[Hosnon]

72. That's just bull and you know it.

I can only assume that you're an attorney who took Con Law?

[Bert]

68. What do you think social security is?

Congress forces you to pay into social security does it not? Just what do you think it is if not insurance for old age. Established law and if this health care is unconstitutional then they will have to outlaw social security, medicare and medicaid. This court might actually try it but I would love to see them do that to see what the consequences would be. If you think this is unconstitutional you must be a teabagger. Hell, congress also forces you to buy our millitary industrial complex, our prison industrial complex, but you think suddenly telling us to buy insurance is unconstitional?

[Tailormyst]

57. I dislike the politician, but I agree with him on this issue

I am a member of the GBLT community, not that it should matter.

He might also think the sky is blue or cooked spinach is gross, and I would also agree with him.

[Hosnon]

71. Excuse me? The merits of an argument are not only not necessarily dependent upon

the arguer, but they are in most cases wholly independent.

[defendandprotect]

67. k

[underpants]

77. "The Cooch" was on the local RW talk radio this afternoon still claiming the suit only cost $350

:eyes:

other than that he cited 4 cases that could apply

http://www.vaag.com/PRESS_RELEASES/index.html