tv Newsmakers CSPAN March 18, 2012 10:00am-10:30am EDT
gaining civil rights. i thought that more confrontation was needed. >> economics professor, columnist, and substitute host force limbaugh -- for rush limbaugh on being a radical. >> i believe that being a radical is an individual who believes in freedom and limited government. i have always been a person that believes people should not interfere with me. i should be able to do my own thing so long as i do not violate the rights of other people. >> more with also williams tonight at 8:00 p.m. eastern and pacific. >> our "newsmakers" guest is ken cuccinelli poverty -- and virginia's attorney general. -- is ken cuccinelli, va.'s attorney general. thank you for being with us. let me introduce our reporters.
we're going to start with health care. i will ask, if you would not mind, to give our viewers a short-hand view of your constitutional issues with the health care law. >> this under peace issue is the individual mandate, the requirement and the federal -- the centerpiece issue is the individual mandate, the requirement in the federal had bill thati-- federal health cae every individual have health insurance. is congress power to resonate -- does congress' power to regulate interstate commerce allow them to compel you to buy health insurance? there has never been the case before like this in the over 200 years since the constitution was
passed. the federal government has never compelled people to buy a product under the guise of regulating commerce. that is the centerpiece of the case. there is another constitutional issue, the tax argument. it rose after the case began. we fire of our case on march 3, 2010, it was all about the commerce -- when we filed our case on march 3, 27, it was all about the commerce clause. -- march 3, 2010, it was all about the commerce clause. we just kept making our case. we here is all the states that address the limited government side of this. they say it is still much power -- it is too much power there. the other side began to worry that they could lose. they started out saying this was a slam-dunk, we will never lose, etc. we won in the district court.
in april, 2010, if you read the account, you will see the tax argument arise. the fine you have to pay if you do not buy the mandated health insurance, which is called a penalty in the bill, it is, in fact, a tax. that is imported because congress has very broad taxing power. -- that is important because congress has very broad taxing power. my position was that no judge or justice would agree with that argument. so far, i have been wrong. only one out of 16 judges found it to be a tax. this is a truly radical position. the government can just order you to buy something and find new if you don't -- fine you if you don't. because they can find you, that comes under the taxing power -- because they can fine you, that comes under the taxing
power. >> thank you for the explanation. >> the taxing argument was raised by the justice department. >> this was a complete reversal. when the bill was being passed, they said, it is not a tax. judges in the courts -- i have felt sorry for federal lawyers. they say, how my supposed to deal with this? this is a bait and switch. >> does the anti-injunction act applied? you cannot sue before tax is levied. it is not right for jurisdiction. both sides of the case agreed that the anti-injunction act does not apply to the supreme court has appointed a lawyer to argue the position that it does apply -- does not apply. the supreme court has appointed a lawyer to argue that position
that it does apply. they have appointed two. they have appointed one to argue about the remedy. i jokingly tell people that the first day is a boring day. the anti-indulgent act is in place so that tax revenues keep flowing. if you want to challenge a tax statute, you have to pay your taxes. that is a policy decision that the federal government has made. we may get something wrong, but we're not going to let the courts interrupt the flow of tax dollars that we need to keep the government running. on the first day, i think you will hear the supreme court's appointed lawyer in a very difficult position, frankly. but of putting aside the tax issue, the virginia case is not what is -- >> beside the tax issue, the virginia case is not what is being heard. do you see any hope that the virginia case would be revisited in any way?
>> ours is being held by the supreme court. what they do with it is a little unclear. the element that is common to all of these cases is the individual mandate. that is the heart of all the cases. our goal is to see that resolved favorably. 100 years from now, what matters is, does the federal government have this power or not? it is very important to america and to us that it not have this power. that is our focus. whoever wins it is really quite secondary. we have another matter with our case that is of concern to me. the fourth circuit are for the first time in the history of this country, for any -- the fourth circuit, for the first time in the history of this country, said that virginia did not have the right to sue to defend its own law. we had our own law that said you cannot be forced to have health insurance against your will.
their decision that we did not have standing was an absolute liar in these cases -- absolute outlier in these cases. >> where do you see that going? >> if the supreme court applied the ruling to our case, they will be implicitly overruling the fourth circuit as it relates to standing, because that is a jurisdictional question. for viewers, if you do not know jurisdiction, you do not get to the other questions of the case. they will have unpleasantly overruled the fourth circuit -- implicitly overruled the fourth circuit. >> what would that necessarily speak to your standing? in an no. if they apply the ruling to our case as well -- >> no.
if they apply the ruling to our case as well. when they have cases of common elements, -- if i had to guess, i would expect the ruling to be applied to the other cases. that happens all the time. i think of menendez, the criminal case i dealt with in virginia. they have several of them on hold. they apply the rule to all of them except virginia's. we argued our case and they said the well, and then desert covers this. -- and they said, well, men -- menendez covers this. >> by staying -- >> i think t hat everyone prisons justice kennedy is the swing vote on this. he has been -- i think everyone
presumes justice kennedy is the swing vote on this. the states can invade federal authority and the federal government can invade state authority. if we lose this case, federalism is effectively dead. that is very inconsistent with justice kennedy's very consistent jurisprudence in this area. i view a ruling by justice kennedy that the individual mandate as constitutional would be a substantial departure from his past trustee -- past jurisprudence. justice scalia was in the majority in the last commerce case in two dozen 5. that is a cause for concern. it was unique. -- in 2005. that is a cause for concern. it was unique. that case was about marijuana.
there are some people who think that certain justices will extend themselves to bring anything drug-related within the federal power. justice roberts, some people look at his joining majority in the -- case the week before the federal government filed their motion to dismiss as a harbinger of doom for our side. i do not see it that way, despite the very broad language of the case, which was a necessary and proper clause case. the very last paragraph of the majority opinion brings very broad language down through a very thin final -- funnel. the federal government cannot get this bill through that final -- funnel. there has not been enough time since that case to assess how justice roberts will come out. >> seth has been following the
national, political, presidential campaign. this decision is right in the middle of it. >> let's talk about political ramifications. how will this affect the presidential race? and your races in virginia? >> this is just one man's opinion, who has not backed a candidate at this public, that the race is just down to two people effectively, though ron paul and newt gingrich could defect -- affect it. one of them was riding in favor of a national mandate. santorum has not. in 2010, just in virginia, we went from 6-5 democrat- republican delegation to 8-3 republican. the health care case had a huge amount to do with that. it was the biggest political flub of 2010.
republicans picked up more seats than filling -- than in years. it has been a long time. one thing that people voting, as between ronald and santorum are doing, they are deciding whether to give up that issue. for romney to get out and say, i would repeal it, is fine. it does not have the power to politically motivated people to volunteer that someone -- it does not have the power, politically, to motivate people to volunteer that someone who has continually supported it does. the economy offers plenty more to talk about. that has been his focus. this issue plays a big role. santorum is leveraging it as best he can. >> santorum accuses romney of supporting the federal mandate. do you think romney supported the federal mandate as santorum says? but if what i read is correct,
yes. -- >> if what i read is correct, yes. he was the model for the national version, and i do not think that is a surprise to anybody. romney correct the distinguishes between the constitutional issues of doing it at the federal level and the state level. if what i have seen in -- is accurate, then he supported it as well, like newt gingrich. i have a problem with that. >> did you support romney in the primary in virginia? >> i am not going to tell you who i voted for. we did not have gingrich and santorum on the ballots. i do not miss -- i try not to miss elections. in 2008, i did not the candidate publicly either. i have stayed out of it. in virginia -- it was particularly peculiar this year because gingrich and centaur or
not on the ballot -- and santorum were not on the ballots. >> there are these exchanges. the choices are that the state establishes and run their own or the federal government comes in with their own version. virginia has been sort of treading that middle path of doing some preparation. in the general assembly in this session, they did not take the final step that they were planning. there is a deadline coming january 1st where states have to show they have made sufficient progress in the order for the federal government not to step in with its version. what is your stance on the general assembly's decision? >> we have a very short session. as we sit here talking, the virginia general assembly session is over. the governor expects, if we lose the case, to call a special
session to deal with that. that is my understanding at this problem. i do not speak for the governor on that, but that is my expectation. we want to control our own destiny as much as possible in virginia. if the law stands and we are given the choice between the federal-governed exchange or a state-governed exchange, i would expect virginia to go in the direction of the state- government exchange. it is worth noting that the federal government has not kept virtually any of its own schedule on any of this. holding the states to the schedule they laid down strikes me as unreasonable. one reason is simple fairness. logistically, one thing leads to another. as we learn other elements of the system that we're going to be plugging into as an exchange, if that's the route we have to go, it informs what we do in that exchange. if they get behind on other things, it makes that more difficult to execute on.
>> they have said they will stretch a little bit on january 1st as long as states shows sufficient progress as opposed to full progress -- as states show sufficient progress as opposed to full progress. would that be sufficient time? >> there are various proponents of the legislation. some of the more reasonable to put it politely -- some of them and were not reasonable, to put it politely. that being said, a steady and aggressive effort has been made to prepare virginia if we lose. we're talking about winning and losing as it is voluntary. this could be a baby-building exercise -- baby-slittinsplittig exercise. if you take the privacy piece off and leave the medicaid in place -- which is phenomenally
expensive. it is a massive expansion of medicaid. what that would do to things like the exchange preparation -- it might just wipe it out. frankly, i am not real sure about that. we will have to see what the supreme court does. we're going to have some scrambling to do as lawyers if we are dealing with that situation. we're going to be recreating something a little bit different than what we foresee. >> if mitt romney is the nominee -- >> no. human beings are human beings. the level of motivation that people may bring to the table may be different for conservatives. they are coming out. this is the most important election in the lifetimes of anybody alive right now.
from a conservative standpoint, the downside of losing this race is almost too much to contemplate. as president and his administration are the biggest lawbreakers to run the federal government -- this president and his administration of the biggest lawbreakers to run the federal government in our lifetime. i do not think any of the nominees are going to do anything to reverse this trend. you need to play by the rules, the rules being the law and the constitution, and that is not happening right now. and expand on that. look at the with the administration has handled immigration -- >> expand on that. look at how the administration has handled immigration. >> this administration has been a lot more cooperative than the bush administration in helping
us move those who are breaking criminal laws into the deportation process and out of the country. better than bush -- they are doing that better. the apparent trade-off is they seem to have come to what amounts to a screeching halt on the civil side of that. you asked about the lawsuits and some of the voter i.d. bills. let's start with the voter i.d. refusals by the department of justice, the pre-clearance objections. we have one coming up in virginia. you do not need a photo id necessarily, but you need a utility bill or something like that. out of indiana came the supreme court case where that noted right winger, justice john paul stevens, in a 6-3 majority, said that voter i.d. laws are perfectly constitutional. the point of the voting rights act is to keep states operating
constitutionally. clearly, in my view, doj has overreached its voting rights act authority in rejecting south carolina, texas. i do not know of george it is in on that as well -- if georgia is in that as well. >> have you look at how similar it is? >> it is different. south carolina requires a set of id's with a photo. they will bring a bus to your house if you cannot travel. they have free ones and all those things. they have brought down the barriers extraordinarily. virginia is a little bit different. we will let you use a utility bill with your address, it is the same as your idriss on the voter rolls -- as your address on the voter rolls.
it raises a major hurdle on the fraud friends. that is the goal. >> do you think it will pass muster with the justice department? >> given what they are doing with the other states, i do not know. i would give et -- giving it a 50-50 shot. we got cleared on our congressional lines. we got cleaned -- cleared on our state lines last year. we had elections last year under the -- the new lines. if we get through 2013 with no voting rights act objections, i believe we would qualify to ask to talk about -- to opt out. >> the tea party. where is the tea party? is it dead? >> no, it is not dead, but it is certainly all over the map.
tea party brings a great, new force to the table that is not with in the other parties. it is very idea-driven. it has the blessing of many new people who have never been engaged before. that is a great blessing. it is also part of the challenge. experience does help with some things. the challenge that tea party has been facing in virginia -- and i know it is not the same all over the country, because this is a very organic movement. they have not been able to coalesce around candidates over the few years they have been functioning. in our state house, they have done a good job coalescing around a couple of issues. health care law in virginia was the top tea party priority in the 2010 general assembly, and they got it on a bipartisan basis. we now have a 20-20 senate. it is a little dicier.
they have not succeeded in coalescing around candidates in virginia. >> how about george allen? are they going to coalesce around him? it seems like there is a lack of enthusiasm for his candidacy this time around, compared to years past. >> i learned a lot from his 1993 race. none of his senate campaigns look anything like that. it is different, i will say that. because virginia will be ground zero in the presidential race and because the senate is so close -- we're going to be very competitive in the u.s. senate race. i think he will see a lot of activity. i'm not concerned that it will not get the level of attention or effort that it requires. >> and other health care issue -- the contraception-coverage -- and other health care issue, the contraception-coverage rule.
>> 1 point i make about the overall federal health care bill and the litigation we are andateting against the m is that the case is not about health care. it is about liberty. the bill is about health care and other things that they threw in, but the litigation is about liberty, whether the government has the ability to compel you in this way. there is an argument he made -- to be made, which is no accommodation at all, it is rhetorical shell shifting on the table. it is deeply offensive to a lot of people who have no real stake in the churches vs contraception, sterilization, abortization debate.
but they are very interested in the compelling of the church. like some other things they have delayed, this administration has delayed past election day, this one may really hurt them. the way to fix the problem is to get a new president. that is obvious to everyone. i oppose this mandate. legally, the best shot at it is the religious freedom restoration act. >> the supreme court has ruled a wide range of these kinds of mandates accessible -- >> i agree. we had a case with justice kagen, of all people, calling the federal government's argument "amazing." when one of their own appointees says that about their arguments, i think they may be in the realm of overreaching. and the back to that three days
or arguments. will you have a seat -- >> back to that three days of oral arguments. will you have a seat in the courtroom? >> i am a member of the supreme court bar. i am looking at whether or not i can get in. i know that they will do a great job for the limited government side. i would very much like to be there for it, having been through about two years of this. that is still not clear. they make their run rules and a change in case by case, to a certain degree -- their own rules, and they changed them case by case, to a certain degree. and the thank you for being here. we just finished a conversation -- >> thank you for being here. we just finished a conversation with virginia's general attorney, ken cuccinelli. he has suggested that, in the race between mr. santorum and mr. romney, people will have to
make the decision about how important health care a lot is to them. law is to them.a lot is to the >> he basically said, if we go with romney, you're giving that issue away to president obama. he did that without endorsing santorum and without telling us who he supports. >> he also made a couple of how critical the health care -- may the point of how critical the healthcare vote was to virginia voters. how important is health care to voters this time around? >> the polls consistently show that it is about jobs and the economy. the public remains stubbornly divided on this issue. that said, it continues to
dominate the news. we have the contraception- coverage rule. that took a lot of attention and oxygen now of the discussion -- out of the discussion. was that working for the republicans or democrats? it has this way of warning itself into the public's consciousness -- worming its way into the public's consciousness. >> it feeds into a broader narrative against president obama, that we are small government, limited-government types. the individual mandate is the symbol of that in their narrative. >> we could not cover it all with the attorney general. we had an interesting post- dating conversation about virginia's contraception, ultrasound legislation -- post- taping conversations about virginia pause contraception, all for some legislation.
where d.c. this question going in the upcoming primary? -- where do you see this question going in the upcoming primary? >> he will ask for accommodation on the contraception-coverage rule. some have not accepted it. they say they are in discussions about coming up with further accommodations. i talked to these groups all the time. they are meeting with the white house. they are still in discussions. the question is, do they announce some new version of an accommodation before the elections or after? they might try to make the issue go away so they can get more people on their side. on the other hand, they might inflame the issue further that much closer to the election. i think it is going to be an ongoing issue. they are not willing to drop its -- they're not going to drop it. >>