Cuccinelli

4th Circuit Upholds Rule of Law in Healthcare Case

In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.

The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.

The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.

It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.

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Judges Regard Arguments Against Healthcare's Constitutionality With Healthy Skepticism

The constitutionality of the Affordable Care Act is once again in the news, as a three-judge panel of the Fourth Circuit Court of Appeals heard arguments yesterday on the constitutionality of the healthcare reform law. As reported by the Los Angeles Times:

Lawyers for Virginia struggled to explain how the state had the legal standing to challenge the healthcare mandate on behalf of its citizens. The judges said precedent did not permit states to sue on behalf of their citizens to contest federal laws.

But standing was not a problem in a second case, where lawyers for Liberty University sued on behalf of several individuals. Both lawsuits said a requirement in the new law that everyone purchase healthcare was a violation of the Constitution. ...

By their comments, members of the panel of the 4th Circuit Court of Appeals sounded as though they would reverse that decision and say Virginia Atty. Gen. Ken Cuccinelli had no standing to challenge the law.

Liberty University lost its lawsuit in federal District Court and appealed to the 4th Circuit. Mathew Staver, their lawyer, said Congress could regulate commerce but not "idleness." In this instance, he referred to the refusal of his clients to purchase health insurance.

But the judges didn't sound persuaded. They noted the Supreme Court had said Congress had broad power to regulate a national market, and the mandate was an attempt to regulate insurance. It is a "practical power," Judge Davis said, to regulate effectively.

Perhaps the judges did not sound persuaded because the far right's legal argument is so weak. It cannot be repeated too often that many of those caterwauling most loudly that the healthcare law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose. In fact, the individual mandate was a Republican idea and originally championed by many of those who now claim that it is an unconstitutional usurpation of power by the federal government. Senators Orrin Hatch and Charles Grassley – who co-sponsored legislation during the Clinton Administration that featured an individual mandate – are among the many who have shamelessly flip-flopped on the issue.

Adding to the shamelessness, Mat Staver was one of the attorneys arguing before the court today that the law is unconstitutional. His extremism has long been reported in Right Wing Watch.

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Wisconsin Republicans Clamp Down on the Right to Criticize Them

Wisconsin Republicans have escalated their assault on Democrats, liberals, unions, and anyone else who does not fall into line for their ideological agenda. This time, it is the right to criticize the Republican Party that is under attack, as the Cap Times reports:

The Wisconsin Republican Party, apparently stung by a blog post written by UW-Madison history professor William Cronon, has responded by asking the University of Wisconsin-Madison for copies of all of Cronon's office e-mails that mention prominent Republicans or public employee unions.

Cronon revealed the GOP's Freedom of Information Act request in his Scholar as Citizen blog post late Thursday evening along with a lengthy, and typically scholarly, defense.

In his inaugural blog post on March 15, Cronon, one of the UW's academic stars, had sketched the apparent influence of the American Legislative Exchange Council (ALEC), a shadow conservative policy group that works with Republican state legislators, on Gov. Scott Walker's legislative agenda. It was the first time the respected professor had used a blog format and he was, to put it mildly, surprised by the response. The blog generated more than half a million hits. For many of his readers, it was the first time they were aware of the organization and its involvement with conservative legislators around the country.

Billionaire brothers Charles and David Koch, major Walker campaign contributors, provide funding support for ALEC. ...

The Republican request, filed two days after Cronon's March 15 post appeared, asks for "Copies of all emails into and out of Prof. William Cronon's state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell."

The named individuals are the Republican governor, the Republican leaders of the state House and Senate, and the eight Republican senators targeted for recall.

Professor Cronon has written a long, must-read response to this political effort to intimidate him for daring to question the Republican Party.

In some ways, this is reminiscent of Attorney General Ken Cuccinelli's assault on academic freedom in Virginia. Academic freedom exists only in name if scholars questioning the Republican Party are bullied into not using it. In that sense, the Wisconsin assault against Professor Cronon is directly related to all the other ways that the modern-day GOP is actively undermining the infrastructure of our democracy, giving us:

  • elections where significant numbers of the GOP's opponents are prevented from voting;
  • campaigns where the GOP's opponents can't be heard over corporate millions;
  • the right to protest, but if you oppose a Republican official he may secretly plant troublemakers among your group to discredit you;
  • the right to a free press, but if a Republican who you criticize sends his goons to rough you up, the Party will not bat an eye;
  • the right to form a union that cannot collectively bargain;
  • the right to free speech, but if you displease the GOP you risk becoming the subject of phony video smears followed up by legislative attack;
  • the right to lobby, but your lobbying firm loses access to a GOP-dominated Congress if it hires Democrats.

In isolation, the incident in Wisconsin is terrible. But to see it only in isolation would be a grave mistake.

If the party officials involved with this are not condemned and banished from the party, this incident will do long-term damage. Continuing party support for those who undermine the foundations of our free society – as in the examples above – significantly lowers the bar for what departures from the principles of democracy are now acceptable.

This incident should be a rallying cry for Americans to protect the liberties and rights enshrined in the U.S. Constitution.

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The Far-Right Agenda Rolls On In the Courts

Yesterday, U.S. District Judge Henry E. Hudson refused to dismiss a lawsuit, filed by Virginia Attorney General Ken Cuccinelli, challenging the constitutionality of the recently passed healthcare reform bill. This procedural ruling will likely lead to years of litigation surrounding the law, which many constitutional law experts believe is well in line with the parameters of the Commerce Clause and Congressional authority.

But much as we have seen, this is just another example of right-wing judges pursuing an ideological agenda to harm progressive goals. Though Judge Hudson’s ruling (see career background here) did not explicitly discuss the merits of the case, it’s pretty clear which side he would rule on, according to Steven Schwinn at the Constitutional Law Prof Blog:

[H]e clearly framed the issues in terms of Virginia's theory of the case--that the mandate is a regulation of a decision not to participate in the interstate economy--and commented throughout on the "complex constitutional issues”. . . The federal government will likely have a tough time getting Judge Hudson to move away from Virginia's view of the case.

This is yet another reason why conservatives are so intently set on packing the courts with right-wing extremists. Time will tell if their strategy works with regards to ideological courts bending the law in order to strike down healthcare reform.

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Ken Cuccinelli Will Not Be Outdone

Virginia’s crusading attorney general Ken Cuccinelli has a new cause: ensuring that Virginia keeps up with Arizona in the race to become the most anti-immigrant state in the union.

On Friday, prompted by an inquiry from Republican Governor Bob McDonnell, Cuccinelli decreed that Virginia police can grill people about their immigration status when stopped for traffic violations or at police checkpoints:

A 2008 Virginia law requires that law enforcement check the immigration status of anyone taken into custody on suspicion of having committed a separate crime. Cuccinelli's opinion could expand such inquiries to those who have been legally stopped by law enforcement, for instance those pulled over for a traffic violation or at a police checkpoint.

Cuccinelli writes in the July 30 opinion that while local law enforcement have the ability to arrest those they suspect of committing criminal violations of immigration laws but not those they believe have violated civil immigration statutes. But he says inquiring into status is different than arresting for a violation and that law enforcement can inquire. While it is a crime to illegally cross the border, many other immigration violations are civil offense, like overstaying a valid visa.

"Virginia law enforcement officers have the authority to make the same inquiries as those contemplated by the new Arizona law. So long as the officers have the requisite level of suspicion to believe that a violation of the law has occurred, the officers may detain and briefly question a person they suspect has committed a federal crime," he writes.

In Virginia, official opinions of the attorney general are considered law unless a judge disagrees with the legal analysis after an opinion has been challenged in court.

A similar provision in Arizona’s law was blocked by a federal judge last week before it could take effect. Arizona’s law required police to make such checks when they suspect that a person they have stopped is in the country illegally, whereas Cuccinelli’s pronouncement merely allows police to make that check. The effect, however, is similar: state police are given the broad authority to determine whom to quiz about immigration status in situations that are unrelated to immigration. And, however many racial profiling disclaimers are written into a law, a regulation like that is going to unduly burden Virginia’s Latino residents, who now must be prepared to prove their immigration status every time they drive to the grocery store.
 

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More evidence that in Virginia, the Radical Right's in charge

The Washington Post reported today that Virginia Attorney General Ken Cuccinelli has sent a letter to the Commonwealth’s public colleges and universities asking them to rescind policies that ban discrimination against LGBT people, stating:

"It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including 'sexual orientation,' 'gender identity,' 'gender expression,' or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly."

Colleges that have included such language in their policies -- which include all of Virginia's leading schools -- have done so "without proper authority" and should "take appropriate actions to bring their policies in conformance with the law and public policy of Virginia," Cuccinelli wrote.

I posted last week on the new Virginia Governor's assault on LGBT Virginians, in his rush to carry out the agenda of the Religious Right. Clearly it's not just Gov. Bob McDonnell who poses a threat to Virginians’ rights. The Religious Right has spread its tentacles throughout the upper echelons of Virginia’s state government, and with its grip firmly on the levers of power, Virginians have a lot to be worried about.

More brutal evidence of the fact that elections matter... Progressives will have a lot of work to do fighting back the policies of McDonnell, Cuccinelli and right-wing state legislators in Virginia.

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