Ken Cuccinelli, on second thought, likes Supreme Court health-care decision

The Washington Post ^ | 02:44 PM ET, 06/28/2012 | Laura Vozzella

[Hunton Peck]

CNN and Fox News aren’t the only ones doing a 180 on the Supreme Court ruling.

Virginia Attorney General Ken Cuccinelli II (R), the first attorney generalin the nation to file a lawsuit over President Obama’s health-care overhaul, said the sky was pretty much falling in a news release issued half an hour after the court upheld the law.

“This is a dark day for the American people, the Constitution, and the rule of law,” Cuccinelli said in the release. “This is a dark day for American liberty.”

By the time he held a news conference an hour and 45 minutes later, Cuccinelli had different take: “It’s mostly sunny.”

The reason? His first impression was based on the basic upshot of the ruling: The court had upheld “Obamacare.” His second was based on a closer look at the ruling, which he found upheld individual liberty and curbed federal power even as it left the law in place.

The court ruled that Americans could be required to secure health insurance, but under Congress’s taxing authority, not under the Constitution’s commerce clause. That means the “individual mandate” has been deemed a tax — a tax Cuccinelli...

[WKUHilltopper]

Why sure he likes it. The whole place is rotting with traitors.

[dagogo redux]

I’m confused: in what way is a tax - backed up by armed IRS agents - not a “mandate”?

[xjcsa]

The whole place is rotting with traitors.

What whole place?

[Perdogg]

The court never said mandates were unconstitutional, they just said it could not be required under the commerce clause.

[Terry Mross]

I wonder who it was who called him and told him to change his tune.

[kabar]

which he found upheld individual liberty and curbed federal power even as it left the law in place.

I am more concerned about the ends than the means. If Congress can use the tax system to compel someone to buy something, isn't that a loss of liberty?

[COBOL2Java]

The court also ruled that the government cannot withdraw existing Medicaid funding from states that opt against a big expansion of Medicaid eligibility.

Well, we've now learned that the federal government can punish states in other ways. Witness Arizona.

Imagine down the road Colorado has announced it will opt against Medicaid eligibility expansion. Obama: "Wild fires? Sorry, can't afford to do anything about em - burn baby burn!" Or Louisiana gets hit by another hurricane. Obama: "Sorry! Y'all have got too many Republicans down there. You're on your own!"

[secret garden]

Perplexing ping.

[Sequoyah101]

Bingo.

See Texas last years fires. No disaster declaration until it became obvious he drug his feet for political punishment. I saw it first hand.

[Truth29]

Huh? If the taxing authority can be used to make you buy or do anything, is this really a difference?

[butterdezillion]

Didn’t he already do that by refusing to declare TX a disaster area with the droughts last year?

Obama is nothing but a political low-life punk and foreign enemy combatant occupying our White House.

[cynwoody]

The court ruled that Americans could be required to secure health insurance, but under Congress’s taxing authority, not under the Constitution’s commerce clause. That means the “individual mandate” has been deemed a tax

But, given it's a tax, is it a constitutional tax?

It's not a federal income tax, which would be legal under the 16th Amendment. It's also not a federal excise tax, since it's based merely on existing, not on using something or carrying on some activity. Nor, obviously, is it a tariff.

So, it must be a head tax or capitation, which, according to Article I, must be laid "in proportion to the Census or Enumeration herein before directed to be taken." Any lawyers care to elucidate that?

[throwback]

This subtlety is just lost on me. If the government is making me do something that I don’t think it should be allowed to under penalty of some fine, how exactly is it different whether the fee is called a fine, a tax, a dog’s butt, or whatever? I’m freer if I’m being compelled by a penalty with the proper name?

[butterdezillion]

I didn’t see your post. That’s exactly what I was thinking about too. The drought, but the fires too.

[Will88]

An activist judge will decide what outcome he or she wants and then supply the rationale. It looks like Roberts might now be in that category along with the four leftists on the court. Anyone who thinks such activist judges will be restrained by some new interpretation of the commerce clause, or taxing authority or anything else is living in a fantasy world.

Activist, liberal justices will arrive at the conclusion they desire.

The only positive to be found today is that the ruling should reignite the Tea Party fire, then bring many more to it to significantly increase the odds of defeating Obama, holding the House and taking the Senate.

[HenpeckedCon]

On the bright side, since SCOTUS ruled the “mandate” is a tax, not “commerce”, a Republican majority Senate will be able to get rid of it through “budget reconciliation” with 51 votes and the Rats will not be able to filibuster.

[rockinqsranch]

Yes, you are most certainly correct on that statement.

[xeno]

So, it must be a head tax or capitation, which, according to Article I, must be laid "in proportion to the Census or Enumeration herein before directed to be taken." Any lawyers care to elucidate that?

Not a lawyer, but Respected Comrade Supreme Roberts addressed this in his opinion:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it. A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. (pages 39-44)

[bereanway]

Exactly

It is in fact a mandate which is enforced through a tax imposed for non-compliance. This would appear to open the door to all types of mandates backed by an unlimited ability to tax.

Cuccinelli claims individual liberty was preserved with this ruling. It’s still coercion which negates individual liberty no matter how it’s spun or what it’s called.

His rethink makes no sense.