Wednesday, May 12, 2021
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NY Times: Cooch’s Lawsuit “sure to be ineffective”

As we know, Ken Cuccinelli continues to waste Virginia taxpayer's money, as well as the time of the Attorney General's office, pursuing his wild goose chase against health care reform. What makes this even more of a waste is that, as this morning's New York Times points out, there's almost no chance of Cooch's lawsuit succeeding. To the contrary, the Times writes, the attempt is "sure to be ineffective." Why not? Two reasons.

First, as I pointed out the other day, the "mandate" to purchase health insurance isn't much of a "mandate," if it's a "mandate" at all. Instead, as the Times notes, "[t]he penalties for not buying insurance have been structured as a tax, to be collected by the Internal Revenue Service."  There are also huge subisidies in this legislation to help people get health insurance. Combined, it's not so much a "mandate" as a combination of incentives (subsidies) and disincentives (taxes); nothing new, certainly nothing unconstitutional. Combined with the fact that "most policies are sold and claims paid through interstate commerce," this makes the new law "bullet-proof," or at least "a long shot that the Supreme Court would invalidate the mandate, if the cases ever reach that level."

Second, regarding the "states sovereignty" argument, the bottom line is that "[n]o state is required to set up an exchange...[n]or is any state required to participate in Medicaid, a joint federal-state program in which Washington pays half or more of the costs."  

If no state - including Virginia - is required to participate in  setting up health insurance exchanges, then how can it be an infringement on "state sovereignty" (to the extent there is such a thing)?  Short answer: it can't. To the contrary, all Ken Cuccinelli is accomplishing here is to waste our taxpayer money and to distract his office from its main job -- cracking down on crime! So much for "tough on crime" Republicans, I guess.  In the end, it's 99% certain that Cooch's lawsuit will end in failure. In the meantime, however, as the New York Times concludes, he and his fellow right-wing warriors are "doing a disservice to their constituents." Not that this will stop him, of course...

UPDATE 9:25 am: David Frum tweets, "Repeal is literally impossible. GOP cannot over-ride Obama veto even if they win evry single Senate seat in 2010...Promising repeal stokes rage in GOP base but promises results that cannot be delivered."  In other words, this is politically dangerous for the GOP, but go for it guys! :)

George Washington vs. Ken Cuccinelli

Ken Cuccinelli is arguing that a "mandate" by government for citizens to purchase health insurance is unconstitutional. Is it? Let's ask George Washington.
The truth, however, is that the Second Militia Act of 1792, required a significant percentage of the U.S. civilian population to purchase a long list of military equipment:
[E]very citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided...
This Act became law only a few years after the Constitution was ratified, in President George Washington's first term. Many of the Members of Congress who voted for the Act also were members of the Philadelphia Convention that wrote the Constitution. In other words, they probably knew a little bit more about the Constitution than Ken Cuccinelli.
Yes, they certainly did know more than our (not-so) esteemed Attorney General. But then again, so does anyone, their uncle, their pet hamster, their goldfish, etc. Ken Cuccinelli: lowering the collective IQ of Virginia government since 2002!

UPDATE: According to Washington and Lee University law professor Timothy Stoltzfus "Health bill lawsuits are going nowhere". Total demolition of Cooch; case dismissed!