Cuccinelli Didn’t Watch Kagan’s Confirmation Hearings

As Tony Carrk has noted, Virginia’s Attorney General Ken Cuccinelli went to court today to defend his health care lawsuit against the government’s motion to dismiss. Virginia Solicitor General Duncan Getchell argued on the state’s behalf and he insisted that “No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce.” Cuccinelli appeared before the cameras after to make that argument in more colorful terms:

“If the government prevails in this suit, and Congress can force Americans to buy private health insurance in the name of regulating commerce, then Congress will have been granted a virtually unlimited power of ordering you to buy anything,” said Cuccinelli, a Republican, who raised the spectre of “Congress forcing you to buy Chevrolets or any other private product it wants” as part of his reasoning for bringing suit.

“That would amount to the end of more than 220 years of federalism,” said Cuccinelli, who told reporters on a conference call Thursday afternoon that the suit is not “about health care.” “It is about liberty. It is about whether we’ll lose our liberty and allow the federal government to dictate to us what we must buy in the name of its policy goals,” Cuccinelli said.

If there is one thing we learned from Elena Kagan’s rather dry confirmation hearings it’s that the Supreme Court has determined that there are limits to what Congress can do under the commerce clause. It cannot regulate non economic activity. As she put it: “the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what’s necessary in terms of the regulation of the country’s economy, but to have some limits.” “And the limits are the ones that were set forth in the cases that you mentioned, the Lopez case and the Morrison case, which are where the activity that’s being regulated is not itself economic in nature, and is activity that’s traditionally been regulated by the states.”


The decision not to purchase insurance is inherently economic. We all have bodies and they all get old and sick. If we go uninsured and then suddenly fall ill, the cost of care is shifted to other payers. In 2008, the government spent some $43 billion providing uncompensated care to uninsured individuals. In that sense, even the failure to buy a product constitutes an “economic activity.”

Cuccinelli said he expected the Court to rule on whether Virginia’s case should be dismissed in 30 days.