Unconstitutional Mandate

Virginia AG Ken Cuccinelli released the following Op-Ed, which ran on National Review Online last week:

Unconstitutional Mandate
Virginia's Obamacare lawsuit is about more than just health care.

There are very good reasons that the federal government has never, in the last 221 years, used the Commerce Clause of the Constitution as a vehicle for requiring citizens to purchase goods or services from other citizens.

The first is textual. Article I, Section 8 of the Constitution provides that "the Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States." Although there have been disputes about just how far this should reach into commerce that is entirely intrastate, until now, it has been recognized that this constitutional provision deals with regulation of commerce - that is, with the use of law to impose reason and order on the voluntary commercial actions of citizens, as well as on activities that substantially affect commerce. An individual mandate to purchase health insurance is not regulation in that sense.

Another good reason this has not been done before is that it turns the Commerce Clause into an alternative, off-books funding mechanism. According to the "findings" section of the law itself, the mandate achieves economies of scale, but in reality, it achieves income redistribution. The law caps the amount that insurance companies can charge based on age, and forbids them to exclude those with pre-existing conditions. As such, the young and healthy people the law forces to buy insurance are overcharged for the purpose of subsidizing the old and those with pre-existing conditions.

One of the drafters of the health-care legislation acknowledged that it uses the Commerce Clause to redistribute income. Sen. Max Baucus, chairman of the Senate Finance Committee, admitted during the Senate reconciliation debate, "This is also an income shift. . . . This legislation will have the effect of addressing . . . mal-distribution of income in America."

Congress could have achieved this in an aboveboard fashion by establishing a special insurance fund for persons with pre-existing conditions, to be funded with general tax revenues, but it lacked the political will to do so. The Sixteenth Amendment authorizes the progressive income tax. It, the taxing powers, and the spending power are the traditional sources of the federal government's authority to create social-welfare programs such as Medicaid. The use of a purchasing mandate instead crosses an important constitutional line.

Do most Americans think Congress has the power to force them to buy products from private companies, and to mandate that those products be overpriced for the purpose of income redistribution? Do most Americans think Congress should have this power? Clearly, the authority is not something that should be conceded until after careful consideration by the Supreme Court.

Fortunately, Virginia's governor and legislature acted decisively - and in a bipartisan fashion - to adopt Virginia's new anti-mandate law, the Health Care Freedom Act. The law states that in Virginia, citizens cannot be compelled to purchase health insurance against their will. It is in direct conflict with the federal health-care bill, and we have filed a lawsuit to defend it.

(This conflict can be expeditiously heard in a federal court in Virginia, which is why Virginia has not joined the other states suing in Florida. We fully support their lawsuit, and we have offered assistance in the form of shared research and an amicus brief to the Florida court on their behalf. We welcome the same from them.)

Virginia's challenge to the health-care bill is not just about buying insurance. It is about the limits of the power of the federal government and its relationship to citizens. Ultimately, it is about liberty itself.

- Kenneth T. Cuccinelli II, Attorney General of Virginia

Mickelson's Win at Augusta a Victory for Families

Although I am not a devoted golf enthusiast, I do typically watch the four PGA majors and have always loved watching The Masters each April. This year’s Masters was especially enticing as it marked the return of the world’s No. 1 golfer Tiger Woods, following his personal and marital issues that became global news headlines beginning late last year. This was to be the “new Tiger” with a better attitude about his game and a better appreciation of the fans.

By late Sunday afternoon, golf fans were instead treated to watching a golfer who couldn’t be a more polar opposite of Woods off the course and is now getting closer to matching his excellence on the course. Phil Mickelson captured his third Green Jacket at the Masters, dedicating his victory to his wife and mother who have been battling breast cancer for the past year.

Over the past year while Woods was racking up another $10 million on the PGA tour winning 6 of the 17 tournaments he entered and spending his “off the course” time engaging with prostitutes and Waffle House waitresses, Mickelson game slipped (although he was still ranked No. 2 in the world behind Woods) for obvious reasons. His focus was not on golf but rather on accompanying his wife to chemotherapy sessions and being with his mother during his recovery. Golf is a mental game and Mickelson’s mind was, understandably so, elsewhere. Although the prognosis is good for both his mother and wife Amy, the mental toll on Mickelson was and must still be immense.

Following Mickelson’s putt for birdie on the 18th green, he embraced Amy and viewers could feel the love he has for that woman. Sadly, less than five minutes later, Woods was interviewed by CBS and he displayed the same petulant, pompous, and arrogant attitude that got him into trouble in the first place. In addition, his promise to tone down his on-the-course cursing and club slamming was broken halfway through the final round.

How ironic that Woods, who blew up and destroyed his family, is now playing second fiddle to the quiet and pro-family guy Mickelson. Let’s hear for the good guy!

Joe Bonamassa Tops Blues Charts with "Black Rock"

Justice Stevens Announces Retirement

Much to no surprise to anyone who follows the SCOTUS on a regular basis, Supreme Court Associate Justice John Paul Stevens, the court's oldest member and leader of its liberal bloc, said Friday he is retiring, giving President Obama his second high court opening to fill.  Stevens said he will step down when the court finishes its work for the summer in late June or early July.

Although Obama will obviously replace Stevens with another Liberal, this is still a good news item for Conservatives.  Stevens was close to Justice Kennedy and swayed him frequently to the wrong side (left side) of a number of decisions.  We are all hopeful that Justice Kennedy will begin to show some moderate, and even right-leaning, behaviors in his decisionmaking.

Univ. of Dayton Captures NIT Title

RC Blog's alma mater, University of Dayton, defeated North Carolina last night to capture its third National Invitational Tournament (NIT) title. 

UD, defeated four top tier conference teams (Cincinnati from the Big East, Illinois from the Big Ten, Mississippi from the SEC, and UNC from the ACC), all away from UD Arena, to win the title.  Congrats to Coach Brian Gregory and the UD Flyers!