Virginia Atty. General Defends Health Care Challenge

President Obama's health care overhaul was dealt a blow this week, after a US District Court judge ruled that a critical part of the law was unconstitutional. Virginia Attorney General Ken Cuccinelli filed the lawsuit which led to that ruling. He speaks with host Michel Martin about the next steps in the case.

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MICHEL MARTIN, host:

I'm Michel Martin and this is TELL ME MORE from NPR News.

It's Friday - time for our Friday features. Later in Faith Matters, we'll tell you about a two-part documentary that premieres on Monday that follows seven young seminarians from a variety of faith traditions as they follow very different paths toward leadership. The film is titled "The Calling," and the series director and one of the young people profiling the film will tell us more about it in a few minutes.

But, first, in our political chat, an interview with the man at the center of one of this week's biggest news stories, Virginia's attorney general, Kenneth Cuccinelli. Last night, President Obama tasted victory when Congress passed a far-reaching compromise on taxes and unemployment benefits that he'd hammered out with congressional Republicans.

But earlier this week the administration suffered a potential setback to a key administration initiative, the health care overhaul. A federal judge found that a key part of that law is unconstitutional - the mandate that individuals purchase health insurance or face fines. Virginia's attorney general, Kenneth Cuccinelli filed that lawsuit. Now, nearly everybody expects that the issue will be the subject of litigation for some time to come.

For example, two other federal judges have already said that the law does pass constitutional muster. But Mr. Cuccinelli is the first successful challenge to the law. All of this has raised Mr. Cuccinelli's national profile considerably. And he's with us now. Welcome. Thank you so much for joining us.

Mr. KENNETH CUCCINELLI (Attorney General, Virginia): Glad to be with you.

MARTIN: Could you just please give us some background. What are the legal grounds on which you decided to challenge? And if you'll just be mindful of the fact that most of are not lawyers.

Mr. CUCCINELLI: Virginia is as clean a case as you can have. We have one challenge and one challenge only - and it is to the individual mandate, the order that each of us buy government approved health insurance. So that's our one and only challenge in Virginia. And to resolve that challenge, the court has to answer two constitutional questions. The first one is, does the commerce clause in the constitution give Congress the power to order us to buy health insurance? And it's either yes or no.

And the second question is the fallback argument for the federal government -is the penalty you have to pay if you don't obey the government's order to buy their approved health insurance, a penalty or a tax? And the reason that question is important is that Congress has vast taxing power. And so if it were a tax, then they could save the bill, even if Congress didn't have the power under the commerce clause to order you to buy the health insurance.

So those are the two constitutional questions. And in our case, in Virginia, the judge ruled, as we requested, that the Constitution does not give Congress the power to order Americans to buy a product, nor is the penalty you have to pay, which is called a penalty in the law, a tax. And therefore we won.

MARTIN: That was speaking to my next question, which is, there is this broader suit filed by 20 other attorneys general and I was going to ask you why you chose not to join that suit.

Mr. CUCCINELLI: Sure. The general assembly of Virginia, last session, at the beginning of 2010, passed a law on a broad bipartisan basis that is called the Virginia Health Care Freedom Act. And it simply says that no Virginian can be ordered to buy health insurance against their will. This became law before the president signed the federal health care bill. Now, as everyone remembers from their 10th grade government class, the supremacy clause says federal laws trump state laws.

However, there's an exception to that, and it is when the federal law is unconstitutional. So, in addition to defending the Constitution against our own federal government, we are also defending a statute of the commonwealth of Virginia. And you don't go to Florida to defend Virginia laws. You do that in Virginia. And our federal courts see our state laws all the time and they're very familiar with them and our code and so forth.

So that's why we're in Virginia by ourselves. And at the time the president signed the bill and these two cases were filed, I believe Virginia was the only state with such a law.

MARTIN: You were quoted in one article as saying that this is the most important thing I will do as attorney general. Why do you say that?

Mr. CUCCINELLI: Because, and the lawyers around the case, know it's the most important case they'll ever work on in their careers because we are as, I think, every judge who has ruled on this case have said, we are at the outer limits of the Constitution. This case is about what those outer limits are. So we really are debating the definition of parts of the Constitution. And we are back at the founding here.

There has never been a case like this in the history of this country. The federal government has never, under the guise of regulating commerce, ever ordered Americans to buy a product before. They've never compelled them into commerce. So this is very unique and there's a major question about how much power the federal government has. I tell people all the time, this case isn't about health insurance, it isn't about health care, it's about liberty.

If they can do this, they can order you to buy a car. They can order you to buy asparagus. They can order you to sign up for a gym membership, to use the examples the judge asked about in court in our case.

MARTIN: Can you talk about the car thing for a minute? There are those who take the other point of view who say that the government compels people to buy things all the time. For example, the government says if you're in some states, if you're going to ride a motorcycle, you have to wear a helmet. If you're going to drive a car you have to buy insurance. And there are those who say, why is this different?

Mr. CUCCINELLI: Well, an excellent question and one that I get frequently. But you said, the government. There are two governments at issue here: the federal government and the state government. The state has the power, as Massachusetts has done, to order its citizens to buy health insurance. Remember, the federal government is the one that states set up to be limited and defined by its enumerated powers. It is the limited government in this context.

MARTIN: So this is a state's rights issue?

Mr. CUCCINELLI: Well, you can phrase it that way. It's more of a limiting the federal government issue.

MARTIN: If you're just joining us, you're listening to TELL ME MORE from NPR News. We're having a newsmaker interview with a man who's at the center of one of the biggest stories of the week. He is the attorney general of the commonwealth of Virginia, Kenneth Cuccinelli. And a lawsuit filed by Mr. Cuccinelli on behalf of the state, successfully challenged the individual mandate set out by the health care overhaul law passed by the Congress last year.

I don't know if you consider this question beyond the scope of your current responsibilities, but you did spend eight years in the state senate before you had your current office. I did want to ask about those who say, what's your better idea? Is this is a bad idea, what's your better idea? And I'm just interested in your perspective on that, if you feel comfortable giving that.

Mr. CUCCINELLI: When I was a kid, also, my parents got caught in-between jobs, which was where my father's health insurance was tied to. And during that very small window, my mother got very sick and there was a period of time when we thought we were going to lose her. And I was too young to participate in it. But as I understand it from my parents, they were bankrupted by it.

And I understand very well the concerns out there. As you note, I was in the state senate and when I was in the state senate I remember walking out of a cub scout meeting and then encountering a lady who told me first that her son had a particular condition, developmental deafness, that was not covered by Virginia insurance. And I say, Virginian insurance, I don't mean the state's, but every state commands insurance companies and licenses them and requires them to offer certain things and not other things.

She said, you know, in Colorado they offer coverage for this, and I'd like you to put in a bill as my state senator to cover this here in Virginia. And I said, well, would it be OK if I put a bill in to allow you to buy a Colorado insurance policy? And she thought about it for a moment and said, well, yeah, that would be fine. That would do the trick. And I hate to report that I wasn't successful, but I suspect that my odds, if I went into the next general assembly session, in light of much of the debate that has taken place in the last two years, I'd have a lot better chances.

And let's realize what I was facing there. I was facing an entrenched insurance industry that didn't want to see changes. And what we have in this country is 50 tiny markets with all sorts of rules and they're all different state-to-state. And as a citizen of Virginia, I can't go buy a policy in North Carolina, or Colorado, or Maryland. I'm not allowed. The law doesn't allow me.

Our law is set up to give consumers less choices and to make the products that are available in your state more expensive. It's insane. Those kinds of changes would go in the direction that would at least make the insurance more affordable and it would also give a ton more choices to our citizens.

MARTIN: There are those who are looking at the aggressive stance you've taken on a number of conservative social issues while you've been in office. Do you see yourself as kind of a civil rights crusader? Do you see yourself more as a - how do you see yourself in this job?

Mr. CUCCINELLI: Well, in the role of the questions you've asked, I would say that I reflected first in my oath, is I'm a protector of the Constitution of the United States, and then of Virginia, though, Virginia's constitution hasn't really been an issue in my tenure yet. Though it will be in the general assembly session when we try to get property rights protected.

And alternatively, I'm a defender of the laws as they are, properly enacted. And, you know, I've issued opinions as attorney general where I don't like the policy reflected in my own opinion. But it is what the law is. And I am going to be true to the law because that's my obligation. I know very well how to get the law changed if I don't like it. The proper course is not to simply reinterpret the law, it is to go through the legal process the founders gave us to change it. And that's critically important and I hew very tightly to that requirement.

MARTIN: What is next in the health care suit?

Mr. CUCCINELLI: Well, the Florida case is just as a big a case as the Virginia case because there's the - it's the other case with states in it - and they are just a few weeks, I would say, behind us with the hearing this week on the constitutionality of the bill in their case. So we are very much in parallel with them. I talked to Bill McCollum this week about the two cases and about what's next and whether or not we should seek to expedite the cases or not. We have not decided to do that.

Though the Department of Justice has informed us that they would not be agreeable to doing that, at least not skipping the fourth circuit and going to the Supreme Court. And we started the discussions with them six or seven weeks ago. So, but they've made their decision for now and now we have to make a decision as to whether or not we should expedite it alone. If we don't expedite it, the normal course would probably put us on a two-year path through the Supreme Court.

And we all know the Supreme Court's going to ultimately decide this. So the question becomes, should we hurry there? There are a lot of people who need to make business decisions and governors who have budgets to worry about that would like this resolved quickly, regardless of which side wins. Just so they know what the rules of the road are.

MARTIN: Kenneth Cuccinelli is the attorney general of the commonwealth of Virginia. He was kind enough to join us from his home office. Mr. Cuccinelli, thank you so much for joining us and happy holidays to you.

Mr. CUCCINELLI: To you as well, and it's good to be with you.

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