Home National Politics Bush Appointee, Former Scalia Clerk Demolishes Cuccinelli’s Health Care Lawsuit Reasoning

Bush Appointee, Former Scalia Clerk Demolishes Cuccinelli’s Health Care Lawsuit Reasoning

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Take THAT Kookinelli, in large part from a “a Bush appointee who clerked for Antonin Scalia and who is seen as a major states rights advocate.”

No matter how you slice the relevant market – as obtaining health care, as paying for health care, as insuring for health care – all of these activities affect interstate commerce, in a substantial way. Start with obtaining medical care. Few people escape the need to obtain health care at some point in their lives, and most need it regularly

Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.

In choosing how to regulate this group, Congress also did not exceed its power

Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No – for several reasons…

In other words, according to a judge who is both “a Bush appointee who clerked for Antonin Scalia and who is seen as a major states rights advocate,” Ken “Koch” Cuccinelli is absolutely, dead wrong in his “reasoning” against the Affordable Care Act and its so-called “individual mandate” (note: I put “individual mandate” in quotes because it’s debatable whether there really is a “mandate” in the federal health care law; it’s also worth reminding everyone that the individual mandate was a Republican idea, an alternative to the employer mandate).

In addition to demolishing Cuccinelli’s “reasoning” on whether health care constitutes interstate commerce, the court – including its “Bush appointee who clerked for Antonin Scalia and who is seen as a major states rights advocate” – also eviscerated the bogus “activity/inactivity” dichotomy, as well as Cuccinelli’s silly “broccoli” argument (sometimes he switches to asparagus instead of broccoli, apparently for variety).

In sum, with health care fundamentally ensconced in the Commerce Clause of the Constitution, and with the individual “mandate” (if it even is a “mandate”) judged to be constitutional, there’s not a heck of a lot left for Kookinelli to work with. Except, of course, for wasting Virginia taxpayers’ money and his office attorneys’ time, when he should be focusing on things an Attorney General is supposed to do: protecting the citizens of Virginia from pollution, corporate malfeasance, crime, internet predators, etc.

Now, with this slam-dunk ruling against his frivolous lawsuit, perhaps our esteemed AG will see the light and focus on his real job?  Yeah, I know, snowball’s chance in h*** on that one!