Say it ain’t so!

The word I am getting is that Republicans in Richmond have made a deal with the devil – in this case Senator Donald McEachin – to allow a gay activist who wants to promote the radical gay agenda and will have no problem legislating from the bench – to a Virginia Court.

The Democrats have only two potential weapons since they lost last November and are now facing a tie in the Senate. They can hold up the budget process as thy already have, and they can hold up the appointment of judges. The Lt. Governor Bill Bolling is unable to cast a tie-breaking vote in either instance.

We have been unable to get the full details on this “deal” but it looks like Republicans are prepared to sell out Virginia’s family values. Who knows what they may be receiving in exchange, but it is not worth the price of appointing a radical homosexual to the bench.

We need good, strong judges who know and follow the Virginia Constitution as well as the US Constitution.

Victoria Cobb of the Family Foundation said:

It has come to our attention that one of the individuals that will be voted on by the General Assembly Monday as a nominee for a judgeship, Tracy Thorne-Begland, has a long history of political activism, has been at the forefront of repealing the federal “Don’t Ask, Don’t Tell” (DADT) policy and once served as a Board Member and Vice Chairman for Equality Virginia, the Commonwealth’s largest and most influential homosexual activism group.  In fact, this nominee for Richmond’s 13th General District Court was with President Obama when he signed the repeal of DADT. Additionally, Mr. Thorne-Begland has lashed out, publicly, against Attorney General Ken Cuccinelli on a host of issues related to the homosexual agenda, saying, “He’s already stood in the way” in relation to Cuccinelli’s urging of public colleges and universities to follow state law when it comes to non-discrimination policies. Thorne-Begland also criticized Cuccinelli for being “against hate crime laws” and “employment discrimination” protections based on sexual behavior.

One statement he made in 2004 in particular stands out.  In an interview with Richmond Magazine, Thorne-Begland said, “In Virginia, we’re seeing a different situation. The situation is so hostile to gay and lesbian interests, particularly the judicial system, a lot of gay and lesbians choose to leave.”  It’s the “particularly the judicial system” statement that is especially concerning.  Does he plan to use his position as a judge to accomplish his political agenda?

In 2004, Mr. Thorne-Begland was asked his opinion of the Marriage Affirmation Act, a law that was the model for Virginia’s marriage amendment, and Virginia’s climate toward homosexuals.  Mr. Thorne-Begland signaled his optimism and said, “Perfect example:  Virginia is the only state in the union that allows businesses to decide whether they can offer health care to gays and lesbians. When progressive representatives in the legislature sought to require businesses to extend domestic-partner benefits, laws are adopted that outright coerce Virginians to accept this way of thinking.”  Mr. Thorne-Begland’s thoughts regarding the use of coercion to change minds and force private businesses to follow his agenda flies directly in the face of free market political principles.

Delegate Bob Marshall added:

MARSHALL SEEKS TO REMOVE HOMOSEXUAL ADVOCATE FROM JUDGESHIP LIST

Legislator Cites Nominee’s Long History as ‘Aggressive Activist for Pro-Homosexual Agenda’

Manassas, May 12 – Delegate Bob Marshall said today that he will seek to remove the name of a homosexual activist from a list of proposed District Court judicial appointments if the name remains on the list when it comes to a vote Monday in the Virginia General Assembly.

The judgeship nominee is Tracy Thorne-Begland, a Richmond attorney identified by Marshall (R., Manassas) as “an aggressive activist for the pro-homosexual agenda.”

“After more than a week of pleading by some Republican Caucus members,” Marshall said, “the House Republican leadership has so far declined to removed Mr. Thorne-Begland’s name from the block of nominees,” Marshall said.  “If this situation remains unchanged, I will offer an amendment to remove his name.”

Marshall questioned whether Thorne-Begland can swear to the oath required of Virginia’s judges in which they pledge to abide by the state’s constitution “if he has already indicated by his past public actions that he does not support its provision ‘that only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivision.’”

Thorne-Begland lives with a ‘partner” with whom he has a formalized homosexual union, Marshall said, and they have two adopted children.  Thorne-Begland has been active in the national homosexual advocacy group, Human Rights Campaign, and with Equality Virginia, of which he is a former board member.

Marshall pointed out that Thorne-Begland was serving as a Navy aviation lieutenant in 1992 when he went on national television to disclose his homosexuality, then was discharged under the “don’t ask, don’t tell” military regulation on homosexuality then in force.  Thorne-Begland sued the Defense Department, alleging that his right to free speech had been restricted, but he lost the case on appeal to the U.S. Court of Appeals for the 4th Circuit in Richmond.

“Mr. Throne-Begland joined the Navy under clear rules on homosexuality that he challenged when he sued the Department of Defense to change DADT,” Marshall said.

“Would Mr. Thorne-Begland also challenge rules that apply to Virginia courts?  Can this candidate swear the required oath to support our state’ constitution if he has already indicated by his past actions that he does not support that section of our constitution barring same-sex legal relationships?

“While our judges and judicial candidates certainly have a right to free speech, they do not have the right to disregard the Virginia constitution”

Virginia’s Attorney General Ken Cuccinelli spoke to the Mechanicsville, Va TEA Party group last Thursday. This is the video from his remarks.

Cuccinelli is also running for Governor of Virginia in 2013.

In this video, Cuccinelli speaks on a number of topics including Obamacare.

You are not going to want to miss this!

Virginia Attorney General Ken Cuccinelli will be speaking at the Mechanicsville TEA Party meeting on Thursday April 5, 2012 at 7:00 PM.

The Obamacare Case is sure to come up! AG Cuccinelli has been one of the leaders on this case and his insight and analysis is second to none.

Additionally, Attorney General Cuccinelli has announced that he is running for Governor of Virginia in 2013.

Ken Cuccinelli is one of the rising stars in the Republican Party and this is your opportunity to listen and ask questions about Obamacare and, perhaps, other areas of interest.

The location is

American Legion

8700 Bell Creek Rd

Mechanicsville, VA 23116

(Here is a map.)

And for a preview of what might be covered Thursday, here is the latest Cuccinelli Compass, which you can subscribe to for yourself here.

Want to get your very own copy of the Cuccinelli Compass? You need to go here and sign up.

Virginia Attorney General Ken Cuccinelli gives his take on the third and final day of Obamacare On Trial.

Dear Fellow Virginians and Friends,

Today was the third and final day of the three-day healthcare hearing in the U.S. Supreme Court, and as promised, I wanted to offer you my reflections on today’s hearing.

Today’s arguments were divided into two separate sessions.  The Court heard arguments regarding severability first.  In a separate session, the Court heard the States’ claim that PPACA’s Medicaid expansion represented unconstitutional coercion of the States under the spending power of the constitution.  I will address each session in turn.

SEVERABILITY

As those of you who have been following the various challenges know, the severability issue will only come into play if the Court finds a portion of the law unconstitutional.  If the Court finds that the individual mandate is unconstitutional, it will strike that portion of the law.  When it does so, the Court must also determine if the remainder of the law (or at least certain pieces of it) must also be struck down.  To the extent that the Court allows other portions of the law to stand, they are said to have “severed” the unconstitutional portion of the law from what it lets stand as law.

Interestingly, as it did regarding the AIA on Monday, the Court did not just hear from lawyers representing the States and the federal government.  The Court appointed a lawyer to argue that if the individual mandate is struck down the rest of the law should be allowed to continue in full force and effect.

The appointment of a lawyer to make this argument was necessary because the federal government has made a significant concession regarding severability.  The federal government conceded in the all of the cases prior to the Supreme Court that, if the mandate were held unconstitutional, PPACA’s provisions regarding community rating and guaranteed issue (essentially that the insurance companies have to insure someone no matter what problems they have or what risks they face) must also fall because they cannot work without the individual mandate. Interestingly, the first time the federal government made this concession was in our case here in Virginia.

So there were three basic positions argued.  The States argued that individual mandate is so central to the law that the whole law must be struck down if the mandate is unconstitutional.  The federal government argued that, if the mandate is unconstitutional, the mandate and the community rating and guaranteed issue provisions must be struck down, but the rest of the law may stand.  Finally, Mr. Farr, the lawyer appointed by the Court, argued that, if the mandate is unconstitutional, only the mandate should be struck down.

Monday’s argument about the Anti-Injunction Act was about legal procedure.  Tuesday was about constitutional theory and the relationship between citizens and the federal government.  Today’s  arguments regarding severability were all about practical, real world effects.  If the Court finds the individual mandate unconstitutional, what happens next?  What’s the proper remedy?

From the beginning, it was clear that the justices were interested in the practical effect of striking down the mandate.

The best example of a justice being concerned with the practical effect of a ruling may have been Justice Kagan, who noted that if the mandate is found unconstitutional, but the community rating and guaranteed issue provisions are left in place, that creates a large problem. She said: “Once you say that the insurance companies have to cover all of the sick people and all of the old people, the rates climb. More and more young people and healthy people say, why should we participate, we can just get it later when we get sick. So they leave the market, the rates go up further, more people leave the market, and the whole system crashes and burns, becomes unsustainable.”

While it’s always dicey to try and guess the outcome from questions at oral argument, all of the justices who asked questions seemed to have this same basic concern over just striking the mandate and leaving the rest of the law in place.  However, there seemed to be a difference of opinion as to whether that meant that, in addition to the mandate, just the community rating and guaranteed issue provisions should be struck down or whether the whole law should be struck down.

In asking their questions about severability, all of the justices agreed that the Court must respect Congressional prerogatives, but their questions suggested two very  different views of how best to do that.

Some of the justices, particularly Justices Sotomayor and Ginsburg, seemed to suggest that the best way to show respect to Congress was to only strike limited portions of PPACA and nothing else.

Others suggested that, to truly show deference to Congress, the Court would need to strike the entire law because, to do otherwise, would be to leave Congress with a law they never passed or even intended to pass. Justice Kennedy said that if the Court struck down the mandate, but left the rest of the law standing, “we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than . . . striking the whole.”

Justice Scalia seemed to echo this view, stating that “My approach would say if you take the heart out of the statute, the statute’s gone. That enables Congress. . . . to do what it wants . . . .  It seems to me it reduces our options the most and increases Congress’s the most.”

Justice Scalia also pointed out that the severability issue in this case was unlike any case that had come before the Court previously.  He noted that the previous severability cases did not deal with the primary purposes of a statute, but generally, dealt with ancillary issues.  However, he said that there is no case where the Court has found the “heart” of a law unconstitutional and left the remainder standing, stating: “This is really a case of first impression. I don’t know another case where we have been confronted . . . with this decision.”

I caution everyone not to read too much into the questions that justices asked about severability  in trying to predict whether or not the Court is likely to find the individual mandate unconstitutional.  In its opinion, the Court will only reach the issue of severability if some portion of the law is held to be unconstitutional.  Thus, all of the questions about severability necessarily assumed that some provision of the law will be found unconstitutional.  So, you can’t assume that a justice is leaning towards striking down the law simply because of the way he or she asked a question about severability.

MEDICAID COERCION

Today’s second session dealt with the States’ Medicaid coercion argument. The argument is that because States are so heavily invested in the Medicaid program they are forced or “coerced” to accept the Medicaid expansion in PPACA because, if they do not, Secretary Sebelius could stop them from receiving any Medicaid funds from the federal government, causing financial ruin for the States.

The coercion theory is grounded in a few Supreme Court cases, most recently South Dakota v. Dole, which was decided in the 1980s. The issue in that case was the federal government conditioning the States receiving a small portion (7 percent) of the federal highway dollars that they would otherwise receive on States raising their legal drinking age to 21. The Court held that this was a proper use of Congress’s spending power because the States could keep their drinking age at 18 if they were willing to forego the federal money.

However, in issuing its decision, the Court noted that seven percent of the federal highway money was a relatively small amount.  The Court, relying on cases dating back to the 1930s, noted that there might be a situation where the amount of money involved was so large that the States would be forced into accepting the conditions.  If such a situation ever arose, the Court indicated that the law might constitute unconstitutional coercion of the States.

While the theory of unconstitutional coercion is well known, the modern Court has never found a situation where it actually existed. Today’s argument was really about whether such a case could ever exist or is the theory of unconstitutional coercion an academic theory that will never have practical effect.

The questions from the justices pretty much covered all of the possibilities.  Some of the justices clearly suggested that so long as the States have the right to refuse the federal money, they are not being coerced.  Others seemed to suggest with their questions that, given how much States have come to depend on federal Medicaid dollars, we may have finally found a case where the coercion threshold had been met.

Justice Scalia asked the Solicitor General if the federal government could identify even a hypothetical example of what would constitute unconstitutional coercion. Citing a 1911 case about the location of Oklahoma’s state capital, the Solicitor General indicated that Congress could not condition the receipt of federal funds on a State moving its capital.  Wow.

Chief Justice Roberts also pressed the federal government on the coercion question, seeking examples of what would go too far.  However, he was also critical of the States’ position, noting that, to some extent, the States reliance on Medicaid is a problem of their own making.  Justice Roberts said: “Well, why isn’t that a consequence of how willing [the States] have been since the New Deal to take the Federal government’s money? And it seems to me that [the States] have compromised their status as independent sovereigns because they are so dependent on what the Federal government has done, they should not be surprised that the Federal government having . . . tied the strings, they shouldn’t be surprised if the Federal government isn’t going to start pulling them.”  Again, wow.  But this one hurts in part because of the truth in it.

For me, one of the most significant comments on the Medicaid issue came from Justice Alito. As those of you who have followed our efforts from the beginning know, I have repeatedly said that this case is not about health care, it’s about liberty. The decision in this case will determine whether federalism – a bulwark of liberty – survives as a tool to preserve our liberty.  While noting that the federal government might be correct in its argument, Justice Alito said that, if Congress can condition the receipt of all federal funds on accepting all federal strings no matter what those strings are, “then there is nothing left of federalism.”

As I have said before, it is risky to try and guess the outcome based on the questions asked at oral argument (even three days worth of oral argument).  The three days of argument have generated lots of things to think about, and I will be reflecting on all of it over the next few days. Once I have chewed on these last three days, I will probably write another Compass giving you my impressions of the whole week taken together.

While I still make no predictions on what the Court is likely to do, I have been cautiously optimistic since we filed the first challenge to PPACA. This week has left me more encouraged about our prospects then I have been to date.  I still believe that the positions we have taken, and that our sister States have taken, are consistent with the Constitution and the foundational principles of this great nation.

You can hear my audio summary of today’s hearings by clicking here.

I’ll write on this subject again, but now we have three months to wait until we see the final order.

Finally, please, once again, encourage others to sign up for The Compass.  We are trying to get over 5,000 new subscribers this week, and we’re well on our way, but we need your help.  So, please forward this on to others and encourage them to go to www.Cuccinelli.com to sign up for themselves!

Thanks so much!

Sincerely,

Ken Cuccinelli, II
Attorney General of Virginia

I’ll say it again. If you don’t subscribe to the Cuccinelli Compass, you need to go here and sign up.

This will give you a ringside seat at all of the important legal events that you will need to be aware of. Virginia’s Attorney General Ken Cuccinelli has an open and honest view of most things legal, but his opinions on how the ObamaCare arguments are going at the Supreme Court are impressive.

This is from yesterday’s Cuccinell Compass:

Dear My Fellow Virginians,

Today was the second day of the three-day healthcare hearing in the U.S. Supreme Court, and as promised, I wanted to offer you my reflections on today’s hearing.

Today the Court heard two hours of argument on the individual mandate – the heart of the federal health care law.  It was exciting and modestly encouraging today in the courtroom.

Let me note at the outset that I am a litigator, and any good litigator will tell you their own stories of having been in court and having the feeling that things were going their way, only to see the court rule against them in the final order.  So, while today went well for the limited government side, it always comes with the foregoing caveat born of experience.

The federal government went first in the person of Solicitor General Verelli.  He was up for almost an hour, followed by Paul Clement for half an hour on behalf of the states, and Mike Carvin for half an hour on behalf of the NFIB.

Previous Compass readers will recall that this argument has two parts: the most important is the argument whether or not the mandate is permissible under Congress’ power to regulate interstate commerce; the federal government’s fallback argument is that the penalty you have to pay if you don’t buy the government-mandated insurance is a tax for constitutional purposes (a position that Justice Scalia quietly called “extraordinary” at the end of the SG’s argument).

Justice Kennedy spoke early and asked the SG if the federal government could order people into commerce in order to regulate them.  And thus began more quasi-answers (like yesterday) by the federal government, as the SG said “that’s not what’s happening here.”

Gradually the SG was directly confronted with the main challenge the feds had in court today, namely, to identify some limiting constitutional principle regarding federal power if the mandate was in fact constitutional.

The SG identified two circumstances that he said demonstrated the uniqueness of the health care (I’m going to say “HC” for short) market that would restrict ‘mandates’ from spreading to the other areas of the economy.  First, he said that HC was unique because big, unaffordable costs could hit someone without insurance unexpectedly; and Second, those costs would be shifted to others if the person couldn’t afford to pay those costs.

Somewhat amusingly, Justice Alito noted that burial costs were expensive and could hit one unexpectedly as well.  He further noted that if he was too poor to pay his own costs and hadn’t prepared for his burial, he would still certainly be buried, and those costs would in turn be shifted to others either by raising everyone else’s burial costs if the buriers had to absorb those costs, or we’d all pay higher taxes if the government bore those costs.

The Chief Justice had his own examples handy.

The SG more or less simply insisted that HC was unique.

The old standbys of the fed’s being able to order you to buy a car or broccoli came up too.

My strong sense is that the federal government failed to overcome its main hurdle of the day, namely, to articulate some limitation to federal power if the mandate was constitutional.

Justice Kennedy noted that the mandate was unique in light of its affirmative requirement of a citizen to purchase something, and that would appear to alter the relationship between the government and individuals in a “fundamental way.”  This is a powerful and deeply philosophical statement that I take great comfort in.

It is a point that we have been making repeatedly, and it goes deeper than just this piece of legislation.  It is akin to my consistent comment that this case is not about HC, it’s about liberty.  And I believe the fundamental change Justice Kennedy was speaking of was one that dramatically reduces citizens’ liberty.

At several points, Justice Kagan threw the SG what I thought were ‘lifelines.’  She seemed to advance the notion strongly that this is just ordinary regulation of a national market, and it’s just a question of timing – of ‘when’ the feds apply regulation.  Justice Kagan seemed to base her assertion on the notion that we are all in, or will be in, the HC market.

Justice Scalia roughly hammered on what market was actually being regulated.  He noted to the SG that ‘you are talking about HC, but you’re regulating insurance.’

The Chief Justice played off that discussion a bit by noting that the feds were trying to solve the problems in the HC market by regulating insurance.  Thus, even if the HC market were unique, what’s to stop the feds from coming back later with some other mandate that was not related to insurance but that was rationalized as helping out with the HC problem?

The Chief Justice also noted wryly that if the Court allows the mandate, ‘you’ll just be back with something else that’s unique’ later.

Justice Breyer referred to the opinion of former Scalia clerk and now 6th Circuit Judge Sutton who ruled the mandate constitutional, and noted his two pages of alleged government compulsions.  To which Mike Carvin simply said ‘none of them apply.’

Never before has the federal government ordered us to buy a product under the guise of regulating commerce.

Justice Breyer also played off one of Justice Kennedy’s exchanges with the SG, and pressed the SG to concede that if they could compel this under the commerce clause, then the feds could compel other purchases too.  This revealed one of the numerous difficulties of the federal position.  Justice Breyer’s tone strongly suggested he thought the SG’s position should be that the feds could order us all to make government-directed purchases under the commerce power, but the SG knew that would be a deep hole with many of the Justices and he wouldn’t go there.

The SG’s problem is that Justice Breyer was actually pushing him toward a much more consistent position.  And it was the logical position for the SG, but it didn’t suit his more limited goals in this case – goals that have left him desperately trying to find some way to treat insurance for health care as totally unique from everything else on earth.

He simply did not pull it off, and while Justice Breyer may vote his way, I don’t think Justice Breyer will agree with the SG’s argument re the mandate.

The Justices also heard argument about whether the the penalty you have to pay if you don’t buy the government-mandated health care was a tax.  There was much less discussion of this, frankly, because I think it is seen as a far-fetched argument… I would call it radical.

If all the feds have to do to bring a directive under the taxing power is fine you if you fail to do it, then they can order you to do anything that doesn’t conflict with some other constitutional protection.  

That argument is going nowhere.

As a final sign that the tax argument is going nowhere, Justice Ginsberg reiterated her statement from yesterday that taxes are designed to raise revenues, but penalties are to compel behavior, and if the penalty works perfectly (i.e., everyone buys the health insurance), the penalty will raise no revenue at all.  I.e., there’s no way it’s a tax.

No Justice gave any particular indication that they were ready to defend the penalty=tax position.

Thus my conclusion that it’s going nowhere.

I left court today happier than when I arrived.

Tomorrow morning, the Court will hear argument on the severability of the individual mandate (i.e., the remedy if the mandate is found unconstitutional); and tomorrow afternoon they will hear the 4th and final argument regarding whether the massive medicaid burdens foisted on the states under the health care law are so onerous as to amount to unconstitutional coercion by the feds of the states under the spending power.

Unconstitutional coercion of the states using the spending power has never been found to exist by the Court, but if this isn’t the case for it, I don’t know what is.

You can hear my audio summary of the day by clicking here.

And please encourage others to sign up for The Compass.  We are trying to get over 5,000 new subscribers this week, and we’re well on our way, but we need your help.  So, please forward this on to others and encourage them to go to www.Cuccinelli.com to sign up for themselves!

Thanks so much!

Sincerely,

Ken Cuccinelli, II
Attorney General of Virginia

March 22, 2012 – (Tonight!)

How to Defeat Progressive Republicans and Democrats – 7 PM

Speaker: John Taylor President of VA Policy Institute, Tertium Quid and Host of The Tuesday Morning Group.

King William TEA Party – King William County Admin Bldg

Contact Bob S. 769-8884

March 27 – 1 PM (Buses leave earlier from ALL POINTS)

DC: Hands Off My HealthCare

Washington DC – Supreme Court of the United States

BUS RIDES: Hands Off My Healthcare Bus Info

Contact ajackson@afphq.org Americans for Prosperity

April 5 – 7 PM

Ken Cuccinelli – Virginia Attorney General and Candidate for Va Governor.

Defeating Obama and the Progressives Radical Agenda

Mechanicsville TEA Party

8700 Bell Creek Rd

Mechanicsville, VA 23116

April 14 – NOON – 8PM

Celebrate Liberty – Family Fun Event!

FREE EVENT – Richmond TEA Party

Chesterfield Fairgrounds

INFO – 441-3741

Back during the 2009 Virginia Statewide elections, a Supreme Court case, Melendez-Diez, caused drug and drunk driving cases to be tossed out by the state.

Democrat Steve Shannon, running against Ken Cuccinelli for the Virginia Attorney General position called the Special Session a “stunt” and declared it a total waste of taxpayer money, as it costs upwards of $40,000 per day to convene the General Assembly.

Other Democrats agreed, but a Special Session was called and plugged up the loophole that was allowing lawbreakers to walk away from what should have been a conviction.

Fast forward to today and we are looking at yet another Special Session. This time, it is not for something as “petty” (to Democrats) as making the state’s drug and drunk driving laws unenforceable, a situation that most Democrats considered a “stunt”.

Oh, no. This year, Donald McEachin and the Democrats forced a Special Session for something far more important – Committee Chairmanships on select committees. In other words, a grab for more power at your expense.

Money is tight. We don’t have $40,000 per day to indulge McEachin’s appetite for a corner office and a first class seat on a committee. Yet the Democrats are stonewalling for more power.

They pretend that they want higher taxes and more money wasted on useless programs. And after finding out that teachers in Virginia are handing out homework assignments to Middle Schoolers to dig up dirt on Mitt Romney and report it to the Obama Campaign (read about this outrage in the Daily Caller) Democrats want to double down with more money for classroom antics like this.

They ought to be pulling funding for schools that help a political campaign as a homework assignment.

And McEachin and the Democrats also want to raise taxes on Gas!

And they are perfectly willing to spend your $40,000 a day to force more Obama Campaigning from the Classrooms and higher gas taxes.

Donald, elections have consequences. You and the Democrats lost your majority for stupid and wasteful ideas like this. Please get your hand out of our wallets and sign the budget and go home. Your little Hissy Fit is costing us jobs and dollars. Every day!

Dear Virginians:

It is a shame when after years of pro-life steadfastness, Governor McDonnell’s commitment gets severely blurred by the sweet wine of Vice Presidential ambition.  Intoxicating and crippling, his drunken desire to play fiddle with Massachusetts Moderation dulls his senses and infuriates his supporters.  Thank goodness for sober Attorney General Ken Cuccinelli who fearlessly grabbed the wheel at a Family Foundation reception on February 15.  Governor McDonnell sat speechless and dumbfounded as our Attorney General Cuccinelli guided Virginia in the right direction by unequivocally pronouncing HB1 constitutional after Governor McDonnell stumbled in a long-winded slurred speech of nothingness when asked if he would support HB1.

It was unconscionable for Governor McDonnell to pretend in front of 200 people that he did not know if House Bill 1 is constitutional. HB1 declares that life begins at conception therefore parents would be able to assert a civil suit in the case of wrongful death of their preborn child (i.e. drunk driver killing a preborn child).  Governor McDonnell knows full well that the language in HB1 has already passed the scrutiny of the U.S. Supreme Court in 1989.  In addition, he knew full well that Attorney General Cuccinelli had already publically declared numerous times that HB1 was constitutional.  Codifying “life begins at conception” in a wrongful death bill is purely stating Science 101.  Any Regent University graduate knows this.

I do not know about you, but I am starving for Republican leadership who will fearlessly lead with conviction and principle.   If I was Governor McDonnell’s political consultant, I would tell him to do three things:  sober up from the lure of Washington, publicly declare his support for HB1 before RINO’s on the Senate Health and Ed Committee try to kill it, and tell Mitt Romney if he does not like McDonnell’s commitment to those principles, he will have to cross McDonnell off his short list of Vice-presidential running mates.  Oh, four things:  Support HB1 because he knows it is the right thing to do.

Terry Beatley

President, No Excuse Ministry PAC

Fredericksburg, VA

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It appears we may have already seen the first salvo fired in the 2013 race for the Virginia Republican nomination for Governor in 2013.

Or is it the second?

Lt. Governor Bill Bolling announced some time ago that he was running for Governor in 2013, and recently, Attorney General Ken Cuccinelli announced his plans to run for the same office. And as we posted last month, Bolling was none too happy about the challenge.

It appears that Bolling is again going on the offensive against Cuccinelli over the embarrassing mess that has arisen over the Virginia Republican Presidential Primary.

If you have been too busy with the Holiday to keep up with the goings on of late, it seems that only Mitt Romney and Ron Paul managed to qualify for the Virginia primary ballot. A rule change was put into place in October – after the process had begun – to exempt any candidates from scrutiny of the signatures they collected by setting a minimum bar at 15,000.

Many have looked the the Virginia process and now realize that it is a system that favors the better funded candidates, which also happen to be the ones preferred by the “establishment” sector of either party. Seeing the toughest in the nation rules eliminate most of the candidates, many have decried the system as blatantly unfair and unnecessarily restrictive.

Yesterday, Virginia’s Attorney General Ken Cuccinelli sent out a Press Release stating that he was considering emergency legislation to attempt to open up Virginia’s Primary to include more of the serious candidates.

And a short while ago, Cuccinelli issued a second statement saying that he had reconsidered and thought it best to leave the matter alone. And while Twitter and FaceBook began buzzing about the announcement, many expressing regret that the AG would back down from righting a perceived deficiency in Virginia’s Election Laws, Bolling issued an unexpected statement.

And while the statement was issued as the Lt. Governor of Virginia, many are wondering if the tone was more in line with (and in conflict with) either Bolling’s role as Mitt Romney’s Virginia Campaign Chairman or Bolling’s role as candidate in the 2013 Gubernatorial race against the Attorney General. Or perhaps all three!

Of course, as Lt. Governor, Bolling’s concern with the Presidential Primary is, at most, tangential. Certainty not sufficient enough to warrant a Press Release on New Year’s Day, which also happens to be a Sunday.

But it was the tone of the Press Release that was more telling. Bolling first applauds Cuccinelli for withdrawing his plans to seek emergency legislation to add more names to the Primary Ballot, a move that, if successful, would have served to lessen the number of delegates Mitt Romney would receive in the proportional allotment of Delegates. And the Press Release goes on to admonishes Cuccinelli in a way consistent with the way a candidate for Governor would scold his primary opponent. An admonition that, as Lt. Governor would be inappropriate and un-Statesman like  in public and best reserved for a private conversation in person or by telephone. And on a normal working day. But totally appropriate for a political candidate intent on scoring points against his opponent.

Hmmm.

Perhaps in the future, Bolling should consider using a press release under 3 different letterheads as appropriate for his statements in order to avoid the confusion of Virginians wondering in which capacity he was speaking.

Or perhaps a joint letterhead with all 3 titles would be better for these types of triple play releases.

In addition, Cuccinelli also released a statement apologizing to all who were disappointed by his decision to allow the process to remain as is for 2012.

All in all, a bizarre exchange on New Year’s Day.

And we are wondering if Cuccinelli will respond to Bolling. And which letterhead he should use.

This is going to be a long 2 year campaign!

Below is the statement from Lt. Governor, Mitt Romney Chairman and Gubernatorial Candidate Bill Bolling.

STATEMENT OF LIEUTENANT GOVERNOR BOLLING IN RESPONSE TO ATTORNEY GENERAL CUCCINELLI’S DECISION TO RECONSIDER HIS CALL FOR BALLOT ACCESS CHANGES IN ADVANCE OF THE MARCH REPUBLICAN PRIMARY

-Bolling applauds Cuccinelli’s decision to abandon call for legislative changes to Virginia’s ballot access requirements in advance of the March Republican presidential primary, and encourages the Attorney General to avoid public comments that are critical of Virginia’s election laws while his office is defending those laws in pending court actions-

 RICHMOND – Lieutenant Governor Bill Bolling today issued the following statement in response to Attorney General Ken Cuccinelli’s decision to reconsider his call for ballot access changes in advance of the March Republican Primary:

“Needless to say, I am pleased that Attorney General Cuccinelli has abandoned his call for legislative changes to Virginia’s ballot access requirements in advance of the Republican presidential primary in March.  While I do not object to the General Assembly considering changes to our ballot access requirements for future elections, it would have been inappropriate to make such changes in the middle of the current presidential nominating process.  That would have been terribly unfair to Governor Romney and Congressman Paul, both of whom successfully complied with these requirements and filed a sufficient number of legal petition signatures to qualify for the Virginia ballot.

“Going forward, I would also encourage Attorney General Cuccinelli to avoid making public statements that criticize our state election laws while his office is defending the State Board of Elections in a lawsuit that has been brought against them by Governor Perry and certain other presidential candidates.  I am concerned that such public comments could be used against the Commonwealth in our effort to defend these lawsuits, and I am confident that the Attorney General would not want to do anything that could jeopardize his office’s ability to win this case.”

It looks like the news is very good:  Breaking news – BOTH the AG and the Governor will support remedial legislation to correct the Virginia Primary Joke!

Virginia Attorney General Ken Cuccinelli is intervening in the Virginia presidential primary dispute and plans to file emergency legislation to address the inability of most Republican presidential candidates to get their name on the ballot, Fox News has learned.  *  *  *

Sources told Fox News that Virginia Gov. Bob McDonnellis expected to support the emergency legislation as well.

Cuccinelli’s proposal is expected to state that if the Virginia Board of Elections certifies that a candidate is receiving federal matching funds, or has qualified to receive them, that candidate will upon request be automatically added to the ballot.

He [Cuccinelli] also happens to be a Republican. He is drafting “Emergency” legislation. GOP is all hands on deck with their separate set of rules for the insiders. We do not need to ask what would have occurred if Ron Paul fell short of the needed signatures:

Virginia Attorney General Ken Cuccinelli (who by the way as a disclaimer I am supporting for Governor in 2013 and I have advised him of this fact!) has come out for sensible ballot access reform:

“It now appears that the only two candidates that will be on Virginia’s ballot on March 6th: Governor Mitt Romney and Congressman Ron Paul,” Cuccinelli says. “While I’m glad for them, it screams out for making our ballot more accessible.”

“I have had the opportunity to talk to a number of the candidates and their campaigns in the last month or so, and the Bachmann folks tell me that Virginia is the third hardest ballot access state in the country. I personally don’t think that’s a good thing.”  *  *  *  “I would throw out for consideration that we should lower our requirements to 100 legitimate signatures per congressional district.”

I think it is time for a ruling that this RPV decision should be unconstitutional as applied and allow at the very least Perry and Gingrich on the ballot with the possibility that we apply the 100 signature per congressional district for the other candidates.  The reward for Romney and Paul is one and two on the ballot position based on actual signatures filed.

UPDATE:  Apparently Perry is going to file that lawsuit to get on the ballot.  Here‘s the story:

“Virginia ballot access rules are among the most onerous and are particularly problematic in a multi-candidate election,” Perry campaign communications director Ray Sullivan said in a statement published by National Journal.

“We believe that the Virginia provisions unconstitutionally restrict the rights of candidates and voters by severely restricting access to the ballot, and we hope to have those provisions overturned or modified to provide greater ballot access to Virginia voters and the candidates seeking to earn their support.”

Nothing like a good fight.  But where is Newt Gingrich?  We’ll see what happens.  But what the Attorney General could do is say three words:  Unconstitutional as applied.

Virginia Attorney General Ken Cuccinelli raised some eyebrows with the announcement that he would run for Governor in 2013. Most in Virginia Republican circles were familiar with the “deal” made between then Attorney General Bob McDonnell and then (and still) Lt. Governor Bill Bolling. Or most had at least heard the rumor.

In order to keep from a bloody and expensive Republican Primary, McDonnell and Bolling came to an understanding. It was more important for Virginia and the Republican Party to regain the governorship than any individual. In exchange for running for a second term as Lt. Governor in 2009, Bob McDonnell promised to support Bolling in a bid for the Governor’s job in 2013. Nice and neat and the money saved by not fighting a primary could be spent defeating the Democrats.

And it worked well.

And Bill Bolling announced his intent to run for governor not long after he was sworn in for his second term as Lt. Governor.

And Bob McDonnell did as agreed. He supported Bolling for 2013. We expected nothing less.

But the candidate who won the job as Attorney General, Ken Cuccinelli, at the time a state senator, was not a party to any such deal. And it is hardly news when a Virginia Attorney General announces a bid for governor. It happens with regularity.

Bolling disappointed a lot of his friends and supporters with his statement more or less attacking Cuccinelli for not living up to the agreement between Bolling and McDonnell. Perhaps this deal was “sanctioned” by the state Republican powers that be, but that is simply speculation and totally irrelevant when it comes to Cuccinelli.

And who knows, there may well be more potential challengers for the Republican nomination. 2013 is a long way off with the 2012 elections looming in between.

Cuccinelli’s thoughts (posted below) address this “deal” and his views on the 2013 elections.

And another point that he addressed succinctly was his decision to remain in the job he was elected to do while he runs for Governor. Many Attorneys General have stepped down to run for Governor. Bob McDonnell is the most recent example.

And McDonnell was criticized (mostly by the left) for not completing the job he was hired to do, even though he thought it best for the Commonwealth to have a full time Attorney General.

But the lefty blogs in particular are screaming that Cuccinelli should step down because he can’t be Attorney General and run for Governor at the same time.

Ironically, they have no problem with President Obama running for re-election and remaining President at the same time.

It seems that their criticism is only for Republicans who decide to remain in office while running for another office.

Let the left not be troubled. I have no doubt that Ken Cuccinelli can do both. Well. He will continue to go after the overreaching Federal Government when he needs to, and he will continue to prosecute bad guys with his full attention.

But that is what the left fears! Not that Cuccinelli will be unable to do the job as he has done for the last 2 years, but that he will continue to stand in the way of the Progressive agenda.

And AG Cuccinelli makes a compelling case for both running for Governor and finishing the job he was hired to do.

From the Cuccinelli Compass:

Dear Fellow Virginians,

Time seems to be getting shorter and shorter, so the Compass will reflect that a bit, but here goes.

Four quick initial thoughts on the Governor’s race… in chronological order.  First, back in 2008, then-Lieutenant Governor Bill Bolling and then-Attorney General Bob McDonnell made a private agreement. They agreed that Bob would run for Governor in 2009 and Bill would run in 2013.  Part of the deal of course was that in exchange for Bill stepping back in 2009, Bob McDonnell would support Bill Bolling for Governor in 2013.  I was unaware of the agreement before it was announced, and I had no role in its development.

The Governor will uphold his deal with the Lt. Governor.  My working relationship with the Governor is not going to suffer during the remainder of my tenure.  Additionally, I am as readily available and willing to work with the Lt. Governor as ever.  We are all allies in governance today and always, even if we will be competitors in politics in 2013.

Second, while I would note that some have complained to me about not “waiting my turn,” I didn’t get in a line and I am not in the habit of trying to stifle competition.  I’m certainly not going to stifle it myself.

In the Republican Party, we talk all the time about the importance of free markets and open competition.  It seems to me that if we don’t practice what we preach, we won’t have much credibility with others.  Not sticking to our principles has done our party enormous damage over the last 10 years or so (it gave us the current President), and these are traps I have continually fought against in my time in politics and government.  I don’t intend to change that when the time comes to elect our next Governor.

And lastly under this second point, I only recently made the decision that I intend to run for Governor in 2013.  It was not something that I showed up in the AG’s office to do.  Much of what I have learned and observed from the unique vantage point of an Attorney General has influenced my decision.

Third, when I do begin to campaign for Governor, I’ll begin the campaign gradually.  The reason for the gradual nature of the campaign of course is that 2012 is the most important election in which we are ever going to be involved in our lifetimes.  The stakes have never been higher, and my political work will reflect that.  I hope all of you are ready to pitch in next year, as Virginia will be at ground zero as one of the most important swing states in the country.

Fourth, I have let it be known that, when I do begin to campaign for Governor, I will not step down as Attorney General.  While other Virginia Attorneys General before me have resigned to run for Governor, its important to know that Virginia is the only state with such a tradition.  No other state does this.  Why? 

Because AGs in other states are perfectly capable of doing their jobs while running for office (whether for re-election, Governor, or whatever).  I am too.

Would I have resigned to run for re-election?  No.  Then why resign when we get in the Governor’s race?

I said when I was running for AG in 2009 that I fully expected to serve out my term, and I made such comments in the absence of a commitment to run or not run for any particular office.

It will be a long road, and our journey will commence gradually as it relates to the Governor’s race.  And throughout it all, my top priority will remain being the best Attorney General I can be for Virginia so long as I am honored to hold this office.

There will be more to say on this subject later, but as for now, it’s on to 2012!

Sincerely,

Ken Cuccinelli, II
Attorney General of Virginia

That didn’t take long.

Republican State Senator Mark Obenshain has announced his intent to run for Virginia Attorney General, a position that came open in 2013 as current Attorney General Ken Cuccinelli announced his campaign for Governor.

From Mark Obenshain:

I’m sure you’ve read by now that Ken Cuccinelli intends to seek the Republican nomination for Governor in 2013. Ken is a principled and effective Attorney General, earning the admiration of friends and foes alike, and he sets a high standard for others to follow.

 

Virginia will need continued conservative leadership in that office, and that is why I am exploring a bid for Attorney General in 2013.

 

I am committed to limited government, low taxes and individual liberty. As an attorney, and state senator, I have dedicated my professional life to the cause of justice, and of defending the liberties that make this nation and this Commonwealth so great. As a husband and a father, I have been blessed to experience the joys, values and importance of family.

 

For the past year, my wife Suzanne and I have been traveling the Commonwealth exploring support for a statewide bid, and I have been encouraged by the response we have received. As the 2013 picture begins to come into focus, I will be exploring a bid for Attorney General more actively, and I welcome your input in this process.

 

As a state senator, I have taken the lead on issues like school choice, eminent domain reform, voter identification, procurement reform, triggerman rule repeal, and the defense of family values. I have worked to keep our communities safe  by securing passage of measures that cracked down on illegal gambling in so-called “sweepstakes cafes” rewrote Virginia’s methamphetamine laws, wrote tough new laws on domestic violence, and helped to defend our children from online predators.

 

For my work in the General Assembly, I have been honored as Legislator of the Year by the Family Foundation of Virginia, the Virginia Sheriff’s Association, and the Eagle Forum, and received the Virginia Association of Commonwealth’s Attorneys “Champion of Justice Award.” I have an A+ rating from the NRA and was one of only six senators to receive the American Conservative Union’s “Defender of Liberty” award here in Virginia. I’ve received these honors by holding fast to common sense conservative principles of limited government and personal responsibility – principles on which I’ll never waver.

 

Back in 1978, after the death of my father, Dick Obenshain, my mother found in his desk a well worn piece of paper upon which he had written the following: “The most important goal in my life is to have some significant impact in preserving and expanding the realm of personal freedom in the life of this country.”

 

To me, those are more than just words. They are a vision – and a calling. As a state senator, I have sought to carry that torch, and with a new Republican majority in the Senate, I am enthusiastic about what we can accomplish there together in the future. But for me, there may be a different course – and I can’t go it alone. If I am to run for Attorney General, I will need your help, your support, your guidance and your prayers. I need to hear from you.

 

So email me, call me (540.437.1451), and, if you’re at the Advance this weekend, please stop by my hospitality suite (#1400) and say hello!

With best regards,

Mark D. Obenshain
Virginia State Senator

Lt. Gov. Bolling and A.G. Cuccinelli

Yesterday’s chain of events has Republicans buzzing.

First, Attorney General Ken Cuccinelli, who has become a folk hero among Conservatives had a bombshell of an announcement when it was disclosed (somewhat prematurely) that he plans to run for Governor of Virginia in 2013. Word is, he planned to make the announcement next week, but the news somehow made it’s way to the media.

But the timing is not exactly what Cuccinelli had in mind. One would speculate that he would have preferred to announce next week after this weekend’s Republican Advance (Republicans don’t retreat) to not disrupt the conversations at the annual Republican event.

But it is big news regardless of the timing. And it delighted Cuccinelli’s fans to say the least. And it has driven fear into the hearts of Democrats, Liberals and especially Progressives in the state.

And it also prompted a response from Lt. Governor Bill Bolling that a number of “engaged” Republicans and Conservatives find, frankly, disappointing.

Bolling’s office released the following statement, which says (in part):

“Needless to say, I am very disappointed by Mr. Cuccinelli’s decision to run for Governor in 2013.  During the 2009 campaign, and since taking office in 2010, Mr. Cuccinelli had repeatedly stated that he intended to seek re-election as Attorney General in 2013 and that is what I and other Republican leaders had expected him to do.  Unfortunately, he has now decided to put his own personal ambition ahead of the best interests of the Commonwealth and the Republican Party.

“In 2009, Governor McDonnell and I gave Virginia Republicans a blueprint for how to win statewide elections in Virginia.  It started with our decision to join together and offer a united vision for the future of our state.  In order to make that possible, I decided to seek re-election to the office of Lieutenant Governor and support Bob McDonnell’s campaign for Governor.  Unlike Mr. Cuccinelli, I set aside my personal ambition and did what was right for the Commonwealth and our party.

Bolling comes off as feeling “entitled” to the job of Governor and bitter about facing competition. One colleague of mine called the Bolling statement “petulant whining”.

Most agree that it would have been stronger politically for Bolling to have welcomed Cuccinelli and all potential challengers to create a robust debate and an opportunity to give Virginians a choice in November 2013.

The Bolling statement reads “Unfortunately, he (Cuccinelli) has now decided to put his own personal ambition ahead of the best interests of the Commonwealth and the Republican Party.”

There is no political queue and no heir apparent in Virginia. And it is totally inappropriate to accuse Cuccinelli of putting his personal ambitions ahead of the best interests of the Commonwealth. Such a statement is both ironic and hypocritical.

Both of these gentlemen are more than qualified to be Governor of Virginia. Bill Bolling has done a remarkable job as Lt. Governor and has worked with the McDonnell Administration and has been a major part of the success of the Administration. His record is substantial and stands on it’s own merit.

Ken Cuccinelli has done an amazing job as Attorney General as well. He has done more in the interest of Liberty and state’s rights than any other Attorney General.

And the success of Bob McDonnell – our former Attorney General – is proof that one can successfully jump from AG to Governor and do well.

Bolling’s statement also mentions a “deal” that was struck in 2009 to avoid a costly primary and unify the party around Bob McDonnell. And we all applaud Bolling’s sacrifice in that deal.

And while Cuccinelli has stated his intentions to run for reelection as Attorney General, that is certainty not binding and it is perfectly acceptable for him to change his mind without being accused of putting personal ambition ahead of the best interests of the Commonwealth.

I have come to know Attorney General Cuccinelli as a very logical man. I have no doubt that if he did not believe that running for Governor was in the best interest of the Commonwealth, he would not do so.

Lt. Governor Bolling has a unique opportunity to prove his mettle and his leadership in the 2012 General Assembly session beginning next month. With a 20-20 split, his vote will be the most important one in the Virginia Senate on many bills. But the true test of his ability to lead will be in the organizational fight that comes first.

Democrats are demanding equal representation on every committee in a “power sharing” arrangement. And while a few years back, when the situation was reversed and the Democrats held the tie breaking Lt. Governorship, they were perfectly willing to grab the power and share nothing until a lone Democrat refused to go along with the plan. Of course, that Democrat was Virgil Goode who would eventually switch parties. But it was Goode’s refusal to go along with the other 19 Democrats that led to power sharing in 1996, not the good will and voluntary acquiescence of magnanimous Democrats.

Absent a turncoat Republican defecting, the Republicans, with proper leadership from Bolling, should take control.

Times are different this time around. The Senate Democrats have ignored – even broken – Senate rules by improperly killing legislation in prior sessions. And they redrew the Senatorial Districts in what can only be described as a power protection scheme for Democrat’s jobs. Absent these transgressions, a power sharing arrangement would be worth considering. But this bad behavior on the part of Democrats does not merit the reward of power sharing.

Bill Bolling has a difficult task ahead. How he leads will make or break his case to run for Governor.

Not a predetermined pecking order.

The statement from the Lt. Governor has placed a negative tone on an election that has not even started. And that is not in the best interest of the Commonwealth, although the Democrats are jumping with joy at the prospect of the internal fighting within the Republican Party that Bolling’s words are sure to spark.

What is in the best interest of both the Commonwealth and the Republican Party is to bury this silly nonsense, deal with the matter at hand (the Senate fight) and act like the Virginia Gentlemen that we know both to be.

Virginia deserves that!

I am looking forward to these debates. We have 5 really strong candidates running to face the Virginia voters in 2012. The first challenge will be in a primary contest with the winner moving on to face the Democratic Party nominee.

Please make an effort to attend a debate near you!

This message is from the George Allen Campaign:

Henrico, VA – The George Allen for U.S. Senate campaign has accepted the invitation from the Republican Party of Virginia (RPV) to participate in three Republican primary debates.  See the following letter from Campaign Manager Mike Thomas to Republican Party of Virginia Chairman Pat Mullins:

Dear Pat,

Congratulations on this year’s historic elections!

In 2009, with the election of Governor Bob McDonnell, Lt. Governor Bill Bolling, and Attorney General Ken Cuccinelli, Virginians showed they were ready for principled, conservative leadership.  We saw that wave continue into 2010 and now 2011 as Virginia Republicans strengthened our majority in the House of Delegates and achieved working control of the State Senate.

This upcoming 2012 election will be pivotal in determining the future of our country.  George Allen believes it is essential for Republicans to discuss solutions to the important issues affecting Virginia families and businesses.  We accept your invitation to continue that conversation in the three debates sponsored by the Republican Party of Virginia.

The failed policies of President Obama, Chairman Tim Kaine and their Democrat allies in Washington have put our country on a dangerous path of sustained high unemployment, massive debt and diminished opportunities for future generations.  Thank you for this opportunity.  We look forward to discussing our positive solutions for Virginians and our Country.

Sincerely,

Mike Thomas, Campaign Manager

George Allen for U.S. Senate

Virginia’s Attorney General Ken Cuccinelli sent out his opinion and view on the ruling that the 3 liberal judges on the 4th Circuit Court sent down. In short, they said Virginia did not have standing to file the suit. Cuccinelli has offered his take on this in his “Cuccinelli Compass” email newsletter. (Hint – sign up for his letter. The info is at the end of this post.)

Sept 16, 2011

Dear Fellow Virginians and Americans,

As you all probably know, we heard from the Fourth Circuit last week in Virginia’s healthcare lawsuit.

The court decided unanimously to throw the case out on standing and not address the merits of our constitutional arguments.

However, the story is far more complicated than that.  You may recall that Liberty University’s suit was heard at the very same time as Virginia’s.  The court threw that case out as well; however, two of the judges stated what they would have done on the merits, and that has interesting implications as we press on to the Supreme Court.

Here are the things I’m going to address today:

-The court’s ruling that Virginia lacks standing to bring the lawsuit;

-The implications of the court’s standing ruling for state sovereignty; and

-The extraordinary position of the court as compared with Federalist 51 (you know, written by that radical guy by the name of James Madison…).

Then I’ll do a quick walk-through of the Liberty ruling, and I’ll explain how it relates to Virginia’s case.  Finally, I’ll note the three unique aspects of what this court did last Thursday that make the decisions true outliers that need to be corrected.

The Court’s Ruling

Before the federal health care bill became law, Virginia passed the Virginia Health Care Freedom Act (VHCFA).  The VHCFA applies to employers and governments in Virginia and anyone else who might seek to force a Virginian to buy health insurance. With limited exceptions, it provides that no one can mandate that a Virginian buy health insurance.

Along came the federal government and passed the federal health care bill.  In that bill was the individual mandate requiring most all citizens to buy federal government-approved health insurance.  The individual mandate conflicted with the VHCFA, and under the supremacy clause the federal law would trump; however, the supremacy clause does not apply if the federal law is unconstitutional.

Thus was born Virginia’s lawsuit.

We sued the day the President signed the bill – May 23, 2010 – the 235th anniversary of Patrick Henry’s ‘give me liberty, or give me death’ speech.  So began our fight for liberty against the unconstitutional federal mandate.

To bring any lawsuit, a plaintiff must have what is called “standing.”  Standing is the right to sue.

To have standing, a plaintiff has to be able to show three things: 1) an injury; 2) that is currently occurring or is certain to occur; and 3) the court must be able to remedy the injury if the plaintiff wins.

Virginia’s injury is that the federal government’s health care law stops Virginia from exercising its legal authority to regulate health insurance mandates using the VHCFA.

This is an injury unique to a state.  You and I don’t have a code of laws.  States do.  And States have the right to protect their code of laws.  In fact, as attorney general, I have an obligation to protect Virginia’s laws (the district court judge in our case explicitly noted that responsibility).

Our suit was premised on redressing this sovereign injury.  However, the Fourth Circuit rejected our position, stating that, to allow Virginia to bring this suit would allow States to act as “roving constitutional watchdogs” over the federal government.  And yes, that quote comes straight from the opinion!

We now know what caused the earthquake in Virginia – James Madison obviously saw a draft version of the final order and rolled over in his grave!

This ruling is an extraordinary assault on state sovereignty and the role for States envisioned by the Founders in our constitutional system.

If you read Federalist 51 – written by that constitutional radical from Virginia, James Madison – you will find that States are supposed to check federal power when the federal government gets outside its constitutional authority!!!

From Federalist 51:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [federalism], and then the portion allotted to each subdivided among distinct and separate departments [separation of powers].  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.”

How do you suppose the “different governments” are supposed to “control each other?”  Contests of authority are carried out in the federal courts – exactly what we are doing, and directly contrary to the Fourth Circuit’s opinion! In fact, as the United States Supreme Court noted in 1992 in New York v. United States,

“In 1788, in the course of explaining to the citizens of New York why the recently drafted Constitution provided for federal courts, Alexander Hamilton observed: ‘The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties.’ Hamilton’s prediction has proved quite accurate. . . . While no one disputes the proposition that the Constitution created a Federal Government of limited powers, the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court’s most difficult and celebrated cases. At least as far back as Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 324, 4 L. Ed. 97 (1816), the Court has resolved questions ‘of great importance and delicacy’ in determining whether particular sovereign powers have been granted by the Constitution to the Federal Government or have been retained by the States.”

The Liberty Ruling

Liberty lost its case in the district court in the Western District of Virginia (we were in the Eastern District of Virginia), and so they appealed to the Fourth Circuit.  Their oral argument was the same day and before the same three-judge panel as Virginia’s.

The Liberty plaintiffs were found not to have standing in their case under what is known as the Anti-Injunction Act or “AIA”.  I won’t go into this, but suffice it to say that other judges around the country considered the AIA in other cases and not one judge anywhere in America found this statute to apply. In fact, even President Obama’s Justice Department conceded in the Fourth Circuit that the AIA did not bar Liberty’s suit.

So, in addition to being the only appeals court to deny a State the authority to defend its own law, they are also the only court in any of the health care cases to find that the AIA applies.  That’s two “unique” conclusions.

The vote to dismiss the case based on the AIA was 2-1.

Normally, when a case is kicked out under the AIA (or on standing), the judges do not comment on the merits of the case.  To do so would violate the long held principle that the federal courts do not issue merely “advisory” opinions.  However, in Liberty’s case, two judges did comment on the merits.

Judge Davis was the one judge that voted against kicking the case out under the AIA.  He said that he agreed with all of the other judges around the country who had concluded that the AIA did not apply. He then explained how he would have ruled on the merits, indicating he would have found Congress had the power to implement the mandate and penalty under the commerce clause.

It was not unusual for Judge Davis to issue an opinion that discussed the merits. Because he voted not to kick the case out under the AIA, all he was doing was saying how he thought the case should have been resolved.

Despite finding that the case was not properly before the court because of the AIA, Judge Wynn wrote an opinion that also addressed the merits of Liberty’s challenge. This opinion provided the THIRD “unique” aspect of the Fourth Circuit’s health care opinions.  Judge Wynn said that he would have upheld the federal health care law under the taxing power of the constitution.

So far, 16 different judges have addressed this subject and he is the ONLY judge in America to say he would uphold the federal health care law under the taxing power.

This is truly an extraordinary position.  What it means is that Congress can pass a law to tell you to do anything (as long as it doesn’t violate some other part of the constitution like the free speech or double jeopardy clauses), and as long as they fine you ($$$) if you disobey their command, that fine is an exercise of Congress’ constitutional taxing power and that makes the underlying statutory command constitutional!

Congress could pass a law ordering us all to wear purple on Mondays, pink on Tuesdays, etc. and fine you $50 if you disobey.  And Judge Wynn’s reasoning would say that the $50 fine is an exercise of the taxing power and therefore such a statute was constitutional.

Conclusion

So, we lost in the Fourth Circuit; however, we are working on our appeal right now and will file it as soon as practicable.  And the fact that the Fourth Circuit is utterly alone in three extraordinary aspects of its rulings leads me to be cautiously confident that the Supreme Court will take a different course regarding all three of those aspects of the Fourth Circuit’s decisions.

I am still cautiously optimistic that the individual mandate will be found unconstitutional by the Supreme Court, and I am hopeful that we will have such a ruling by the end of June of 2012. Whether that happens in our case or in another does not matter so long as the correct constitutional answer is reached.

The federal government will likely try to slow the case down by asking for more time to file its brief in our case and by asking to drag out the appeal in the 11th circuit (where the Florida case with 26 other states was decided).  So it is still possible that this will not be decided before Election Day 2012; however, if you were President Obama, do you really want this being argued in the Supreme Court in October of 2012?  I would think he’d want it disposed of in June 2012 rather than watching a maelstrom of news coverage related to the case on the verge of the election.

Nonetheless, they keep doing everything they can to drag it out.

I will keep you informed!

Sincerely,

Ken Cuccinelli, II

Attorney General of Virginia

Tell others to sign up for The Cuccinelli Compass at Attorney General Cuccinelli’s Website:

This was not an unexpected result from the 3 judge panel. They were all liberals and I have already written about the predicament they find themselves in. A ruling in favor of ObamaCare and Cuccinelli gets to decide the next venue for appeal: The full court, or the Supremes. The justices were smart and avoided the real question: Can the Federal Government force us to purchase GM cars, broccoli or Health Care. This one was thrown out on what most would call a “technicality”.

Not unexpected from 3 Constitutionally Blind Justices.

Here is what AG Ken Cuccinelli had to say, and yes, he will appeal.

RICHMOND, VA (September 8, 2011)- Virginia Attorney General Ken Cuccinelli responded today to the U.S. Fourth Circuit Court of Appeals decision in Virginia’s lawsuit against the federal government’s health care reform act.

“Obviously, we are disappointed in the ruling. Our disappointment not only stems from the fact that the court ruled against us, but also that the court did not even reach the merits on the key question of Virginia’s lawsuit-whether Congress has a power never before recognized in American history: the power to force one citizen to purchase a good or service from another citizen,” said Cuccinelli.

In summarizing the ruling, Cuccinelli noted that, by resting its decision on an alleged lack of standing by the commonwealth to even bring its lawsuit, the court dismissed Virginia’s claimed injury as illusory.

“Contrary to the court’s suggestion, this suit has always been about vindicating the power of the Virginia General Assembly to legislate about a subject that has historically been viewed as falling within the areas the Constitution left to the states. Health, safety, and welfare issues have long been recognized as being part of the powers reserved to the states by the Constitution,” Cuccinelli said.

Cuccinelli noted that the court’s stated reasons placed the ruling’s reasoning at odds with constitutional design. “In rejecting Virginia’s right to bring the action, the court said that allowing such suits would allow the states to serve as ‘roving constitutional watchdogs.’ This was exactly a role that the Founding Fathers planned for the states to have. As James Madison wrote, under the Constitution, ‘the power surrendered by the people is first divided between two distinct governments…Hence a double security arises to the rights of the people. The different governments [state and federal] will control each other…’”

Cuccinelli continued, “Not only does the court’s opinion reject the role of the states envisioned by the Constitution, it dismisses an act of the Virginia General Assembly-the Health Care Freedom Act-as a mere pretense or pretext. It is unfortunate that the court would be so dismissive of a piece of legislation that passed both houses of a divided legislature by overwhelming margins with broad, bipartisan support.”

Cuccinelli vowed to appeal the court’s ruling.

RICHMOND (August 12, 2011) – Statement of Attorney General Ken Cuccinelli:

“I am pleased that the Eleventh Circuit Court of Appeals found the individual insurance mandate and penalty unconstitutional.  The court determined that the power to force one citizen to purchase a good or service from another is outside the established outer limits of both the Commerce Clause and the Necessary and Proper Clause.  The court also ruled that although the president and Congress want to now call the penalty a tax to make it pass constitutional muster, the penalty cannot be sustained under the federal government’s taxing authority because the penalty is clearly not a tax.

“I congratulate our fellow attorneys general in this major victory, and although this court is not in our circuit, I am pleased that the judges ruled in favor of the two key arguments that are present in our Virginia suit.”

Virginia’s case was heard May 10 in the Fourth Circuit Court of Appeals.  A ruling has not yet been issued.

More about Attorney General Cuccinelli.

A copy of this news release may be found on the attorney general’s web site here.

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