Ken Cuccinelli Says Something Right

But more importantly, something courageous, by stating that Massachusetts’ version of the individual mandate is “legitimate.” This is clearly right, but leads one wonder whether the Virginia Attorney General’s view of what kind of government regulation constitutes “socialism,” at odds with “liberty,” has any rational basis. If a state mandates the purchase of insurance, isn’t that just as much of an intrusion into personal liberty? If “liberty” is coextensive with the limits of federal activity, that’s a fairly cramped definition of a fairly important word, isn’t it? If so, maybe we should stop talking about commercial regulation as a matter of constitutional life & death.

Of course, his larger point, that the individual mandate in federal garb is “the end of federalism,” remains wrong, and odd, too. There’s no contention that purposeful inactivity can’t cause as much impact on interstate commerce as purposeful activity. Given that, I fail to see why the Necessary & Proper Clause shouldn’t apply. Isn’t this exactly why we have the damn thing?

Oh! And I have an argument before the Seventh Circuit Court of Appeals today. So… wish me (and my client) luck!

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3 comments

  1. If a state mandates the purchase of insurance, isn’t that just as much of an intrusion into personal liberty?

    Well, not if you’re working from a states’ rights point of view, which I guess Cuccinelli does. Then the states are the main expression of the peoples’ will/liberty, while the federal government is the main threat to it. In other words, it’s ok if a state does it, but not Washington.

    It’s still pretty much the same argument as between Jefferson and Hamilton, really.

    1. And good luck with the case, of course!

  2. Thanks man!! It went okay!

    And yeah, it’s definitely the same argument. But you’d think we’d learned from the Jim Crow days that states can be tyrants too, and sometimes federal regulation is the cure.

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