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?
CUCCINELLI: Well, from a policy perspective, it’s the biggest catch-all piece of legislation you’ve ever seen that doesn’t really have a primary purpose. I guess the primary purpose suddenly becomes a massive increase in Medicare and Medicaid. That’s the piece that costs Virginia so much money. I’d have to go back and take a look, though. Assuming we stay in the same position through the Supreme Court, taxes are going to go up to pay for it — or spending is going down on everything else, because in Virginia, the cost to us is a billion and a half dollars for the next ten or twelve fiscal years, net. Of course, they stop funding it in 2014 or 2015, and it’s left to the states as a more or less unfunded burden, unless we want to bail out of Medicare and Medicaid.
For the first time, states are talking about at least looking at that option — what does that option look like — because it’s been so stark historically that no one has ever contemplated it. I saw that Texas is at least looking at it. For purposes of discussion, that’s a useful exercise, though I don’t know how the math will play out. I don’t have the answer at this point. It would take a really thorough review.
FOSTER: What else?
CUCCINELLI: Bureaucracy. There’s such a huge bureaucracy in the bill because the number of rules and regulations that the feds lay on how this money can pass through the system is mind-boggling — mind-boggling. Even if you spent the same amount of money, if you just required some form of transparency to pricing and medical outcomes, so consumers could make informed choices — and you wouldn’t even need to require it, because as a natural course, the market would demand it — and if you let citizens control the flow of that money, guess what? They’re going to make intelligent decisions. I know there are plenty of liberals who don’t think American citizens can make intelligent decisions, but for hundreds of years they’ve proved they really can. For 45 years, we’ve had one policy solution every time there’s been a perceived problem with our health-care system. One: more government.
FOSTER: You’re speaking my language. We love the saying around here: “Don’t just do something, stand there.”
CUCCINELLI: Ha-ha! Relatively speaking, that can look pretty good under some circumstances.
I would go a step farther and say we need to move in the direction of empowering individual citizens and consumers in this process, and reintroducing competition. The notion of what insurance is has been so destroyed over 45 years. These days, insurance in the health-care industry is like a service contract on your furnace. It’s regular services. Insurance was supposed to be protection against catastrophic occurrence. If we move back in that direction, and people absorb the initial, underlying costs of carrying forward ordinary health insurance, the cost even of insurance for those catastrophic occurrences would come way down.
FOSTER: Let me try to put you on the spot. Is an Affordable Care Act without an individual mandate a tenable piece of policy, or does it perish?
CUCCINELLI: Well, it’s already been voted through. It has to be undone at this point. I think that if we prevail in the Supreme Court, it gets a whole lot easier. Republicans are now talking about repeal. Without the insurance provisions, repeal becomes something that maybe this president would sign. He hasn’t said anything to me, one way or the other, but maybe he would. Who knows? Certainly, that isn’t where the policy development from the proponents’ view was coming from. That was all in the insurance piece. All of it.
FOSTER: It does all the work, yes. So, I’m going to ask you to speculate, to the degree you feel comfortable: Do you think Justice Kagan will recuse herself?
CUCCINELLI: No, she’s already made that clear. She won’t. There was a California [Obamacare] case where the plaintiffs were thrown off on standing and they appealed to the Supreme Court to get an expedited review. Kagan voted no on that review. The fact that she voted no made it clear to us that she’s going to participate in all these cases that come to the Supreme Court.
FOSTER: When this gets to the Supreme Court, Justice Kennedy is obviously going to be the crucial vote. As a jurist, if you had to guess Justice Kennedy’s jurisprudence on this, what would you say about where he stands?
CUCCINELLI: On some issues, there are concerns about where he stands — can you even pin him down on what he thinks? But if you look back through his opinions on matters related to structural federalism — the balance of power between the federal government and the state governments inherent in the structure of the Constitution — as recently as his concurrence in the Comstock case on May 17, you will see a continuation of his consistent protection of structural federalism. One important thing to consider about how Justice Kennedy might view this case is to think about what would happen if we lost. The notion that federalism is over if we lose becomes suddenly very important, because the historical indication is that Justice Kennedy views that as critically important.
FOSTER: “The tie goes to freedom,” right? That’s supposed to be his philosophy.
CUCCINELLI: I feel pretty good about anybody who says that. That’s what this case is about. There’s no question that if we lose it, there’s a shrinkage of liberty. And it’s a lot broader than people think or have even discussed. That would be a sad, sad outcome. The Founders would turn over in their graves.
FOSTER: Is there anything else in the Hudson decision that you were particularly discouraged by?
CUCCINELLI: Not really. I zeroed in on the constitutionality pieces. Would I have liked to have seen it as an injunction rather than a declaratory judgment? Yes, just for cleanliness. But what ultimately matters most is the Supreme Court, so I’m not too put off by that. It’s not a big deal in terms of the consequences of this district-court decision. The big deal is the two rulings on constitutionality, and those are the two that will redound to our benefit going forward.
FOSTER: How do you feel about your request for expedited review by the Supreme Court?
CUCINELLI: We have asked the DOJ to join us in a Supreme Court Rule 11 petition to expedite. They’re still considering that. It’s been a very civil and cooperative discussion. So we’ll see how that comes out before we decide.
FOSTER: But you’re open to moving forward without the DOJ’s blessing.
CUCCINELLI: We are. We may not be the only ones. Ours may be consolidated with other cases. That’s all fine — whatever the court wants to do. The key, though, is the individual mandate. That’s our whole case. It’s a pretty clean rifle shot.
FOSTER: Last question. Everyone wants to know: What are your long-term political ambitions?
CUCCINELLI: I don’t have any at the moment. I’m taking active steps, always trying to do outreach and trying to build our support base, because the other side’s doing the opposite. We’re trying to raise money. We’ve tried to drive traffic to our website. We’ve gotten a lot of sign-ups to our electronic newsletter. It’s amazing what folks will do: write letters to the editor, do petition-signing, lobby the general assembly. And we’re cataloguing everything that’s happening with this health-care case on the website.
— Daniel Foster is news editor for National Review Online