Cuccinelli, Victorious
The man behind the individual mandate’s judicial defeat talks to NRO.


On what was surely one of the busier days of his life thus far, Virginia attorney general Ken Cuccinelli spoke with National Review Online about his state’s victory yesterday in the first ruling to find a portion of the Affordable Care Act (ACA) unconstitutional.

It’s a juicy interview. Cuccinelli tells us what disappointed him about the ruling, contemplates the policy mess that is an ACA without a mandate, and even predicts that there are conditions under which President Obama would happily sign a repeal. We ask him whether he thinks Justice Kagan will recuse herself (he doesn’t) and whether he thinks he can count on the vote of Justice Kennedy (he does). And of course, we ask what his newfound fame on the Right means for his political future.

DANIEL FOSTER: How big of a deal is severability? Judge Hudson decided the rest of the bill could stand, minus the mandate and everything that depended on it. Would you describe that as a disappointment to you?

ATTORNEY GENERAL KEN CUCCINELLI: Certainly we asked that the entire law be stricken. But I told folks beforehand that the thing to watch is the ruling on constitutionality — that’s the one that’s most important. This is about liberty first and health care second. Because if we lose this case, they can order you to buy any product. That’s what we might be facing. That being said, we would have preferred the law had been stricken in its entirety, rather than just those provisions depending on the individual mandate, which were declared inoperable with the individual mandate declared unconstitutional.

Now, the remedy — that’s the part of the case where there could be a million permutations. On the individual mandate, it’s either constitutional or it’s not. On the taxing power, it’s either a tax or it’s not. Then you get to the remedy. With a 2,700-page bill, there’s an infinite number of ways the remedy could come out. Every court is going to have its own opinion on this, and we look forward to having the opportunity to argue that part of the case again at a higher level as we move to the Supreme Court.

FOSTER: Okay, I want to get to the next step in a second. But first, the consensus on both left and right is that the Affordable Care Act without an individual mandate is a cumbersome mess.

CUCCINELLI: Shoot, the federal government said in their briefs that if the individual mandate is found unconstitutional, the insurance provisions can’t survive. They can’t function.

FOSTER: Right. So this is all going to be adjudicated at some point in time, and probably before 2014 —

CUCCINELLI: Oh my goodness, I would hope it doesn’t take that long.

FOSTER: So what is an Affordable Care Act without a mandate, but with these non-severed bits and pieces still in place? What does that policy look like?