Virginia's Attorney General On Health Care, Immigration

Host Liane Hansen speaks to Virginia Attorney General Ken Cuccinelli about immigration and health care. Last week, a federal court refused to dismiss Cuccinelli's suit against the new federal health care law, and Cuccinelli issued an opinion which gives the OK for Virginia police to inquire about the immigration status of those they stop.

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LIANE HANSEN, Host:

Health care and immigration are two issues already galvanizing candidates and voters in the run-up to the fall elections. On both, one voice has risen to particular prominence in recent weeks, that of Virginia Attorney General Ken Cuccinelli. He joins us now from his office in Fairfax, Virginia. Attorney General Ken Cuccinelli, welcome to the program.

KEN CUCCINELLI: Glad to be with you, Liane. Thanks for having me.

HANSEN: It's a pleasure. First, I want to talk you about your lawsuit. A federal court last week refused to dismiss your lawsuit challenging the new Health Care Law, rejecting arguments from the Obama administration that Virginia had no standing to sue over the law. What's the basis of you lawsuit?

CUCCINELLI: Well, the basis of the lawsuit is first and foremost that Virginia passed its own statute prior to the federal health care bill that protects Virginians from being ordered into a health insurance mandate. Shortly thereafter, the president signed the health care bill and, of course, the health care bill includes the individual mandate. And so the Virginia law, called the Virginia Health Care Freedom Act, was in conflict with the federal health care bill - particularly the individual mandate.

So we brought suit to, in our view, protect the Constitution and Virginia's own statute. Because normally the Supremacy Clause would have the federal bill trumping the state law. However, that is not the case if the federal bill is unconstitutional, which is Virginia's position. So now it will go forward in October for oral argument, where the constitutionality of the bill will, in effect, be debated.

HANSEN: Hmm, what's your argument that the health care bill is unconstitutional? How is it unconstitutional?

CUCCINELLI: The individual mandate ordering people to buy government- approved health insurance goes beyond any regulation of commerce that has ever been held constitutional before, which the judge commented on. And the penalty for not purchasing that health insurance goes beyond anything that the Supreme Court has found to be a constitutional tax or an exercise of the taxing power before, which is the secondary defense of the administration for the legislation.

So - and judge said each of those things in his ruling this week. He did not say it's unconstitutional. But he did say that this legislation goes farther than anything that has been held constitutional under the Commerce Clause and it goes farther than anything that has been held constitutional under the taxing power before.

So we know that we are in constitutional Never Neverland, but we don't know whether or not they will agree with Virginia that in fact this is an unconstitutional exercise of power by the federal government.

HANSEN: So, in other words, you're saying that if a person chooses not to buy insurance, they're not engaged in economic activities...

CUCCINELLI: At all.

HANSEN: ...and so Congress cannot regulate the actions as interstate commerce. That's the nut, right?

CUCCINELLI: That's the nut boiled down. And then you get to the fallback, which is the tax argument.

HANSEN: I'm speaking with Virginia's Attorney General Ken Cuccinelli.

I'd like to move on to another issue that you've been in the spotlight for: The opinion you issued that gives Virginia police officers the okay to check people's immigration status when they stop someone. Are you actually encouraging officers to check immigration status?

CUCCINELLI: Well, first of all, realize that my opinion didn't give them that authority. My opinion, in answer to a legislator's request, informed the legislator that they - that law enforcement already has the authority to ask lawfully-detained individuals really about anything, but the opinion was focused on asking them about immigration status.

It doesn't speak to whether people are obligated to answer those questions or not and what can be done with that information, unless the law enforcement officials get answers.

I will tell you that law enforcement already knew they can do this. Legislators didn't know it. Local governments didn't know it. The press went relatively crazy over the opinion. We were quite surprised, given that we knew we weren't breaking any new ground.

HANSEN: The American Civil Liberties Union has directly encouraged police officers in Virginia to ignore your opinion. How do you respond?

CUCCINELLI: Well, the nature of their complaints is terribly weak and they mailed that off to the police and sheriffs in Virginia who, like I said, the one category of people who already knew that what I said in my opinion was the state of the law towards law enforcement. So law enforcement knows what to do with that sort of unsolicited advice.

HANSEN: There is a case that has brought a lot of attention to the immigration issue in Virginia. A drunk driver was in the country illegally and has been charged with killing a nun, injuring two other nuns. The driver had at least two previous drunk driving convictions, has been released twice by immigration officers who took him into custody because he was in the U.S. illegally. And this has riled up a lot of people in Virginia.

But the nuns' order has said that they're dismayed that has been turned into a political issue. Have you been in touch with them and how do you respond to their reaction?

CUCCINELLI: Well, that happened in my home county and I have not been in touch with them. I certainly have heard their comments and respect that. But whenever you have something like that occur, when immigration is a front burner topic, if you will, it's virtually inevitable that people are going to point over to it and say, you know, this one was avoidable. And, boy, it's hard to think of a more avoidable one when Homeland Security had him in custody twice.

But even as this was quickly escalating for him personally, he still wasn't being sufficiently prioritized in the deportation process to be moved through and out.

HANSEN: Ken Cuccinelli is the attorney general for Virginia and he joined us from his office in Fairfax. Thank you very much.

CUCCINELLI: Yes, ma'am. Glad to be with you.

HANSEN: You're listening to NPR News.

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