. national captioning institute] cable satellite corp. 2012] >> i was quite a radical as a >> our guest this morning is virginia's attorney general, ken cuccinelli. >> i was quite a radical as a young person. i was the one that got that we shall -- singing "we shall overcome" was not a very effective way of gaining civil rights. i thought that more confrontation was needed. >> there was another case.

when we filed our case, it was all about the congress. if you go and look at the press coverage there, the first month, a lot of criticism about what we were doing. they started out saying, this is a slam dunk, we will never lose. of course, we won in the district. what it is, the fine you have to pay, if you do not buy the mandated health insurance, which is called a penalty in the bill, is called a tax.

that's important because congress has very broad taxing power. my prediction of the case is no judge would agree with that. so far i have been wrong by one. there is one judge. this is a truly radical position. if the government can just order you to buy something, and fine you if you don't, and because they can fine you that comes under the tacking power, they can order you to do anything. >> thank you for the explanation. >> the taxing argument was raised by the justice department. >> this was a complete reversal. when the bill was being passed, they said, it is not a tax.

when the bill was being passed, they says it is not a tax. and judges in courts -- i actually felt sorry for federal lawyers. they said, this is a bait and switch. how are we supposed to deal with this? >> does the anti-injunction act reply? >> right. >> which means you cannot sue before a tax is 11:00ied, so this is not right for a jurisdiction. >> right. and interestingly, both sides of the case agreed that the anti-injunction act does not apply, so the supreme court has appointed a lawyer to argue the position that it does apply. the supreme court has appointed a lawyer to argue that position that it does apply. they have appointed two. they have appointed one to argue about the remedy. i jokingly tell people that the first day is a boring day. the anti-injunction act is in place so the tax revenues keep

flowing. this makes sense. if you want to challenge a tax statute, you have to pay your taxes to do it. that is a policy decision that the federal government has made. we may get something wrong, but we're not going to let the courts interrupt the flow of tax dollars that we need to keep the government running. on the first day, i think you will hear the supreme court's appointed lawyer in a very difficult position, frankly. >> but putting aside the taxing issue, the virginia case is not what is -- >> right.

>> sbhidse the tax issue, the virginia case is not what is being heard. >> do you see any hope that the virginia case would be revisited in anyway? >> ours is being held by the supreme court. what they do with it is a little unclear. the element that is common to all of these cases is the individual mandate. that is the heart of all the cases. our goal is to see that resolved favorably. 100 years from now, what matters is, does the federal government have this power or not? it is very important to america and to us that it not have this power. that is our focus. whoever wins it is really quite secondary. we have another matter with our case that is of concern to me. the fourth circuit are for the first time in the history of this country, for any -- the fourth circuit, for the first time in the history of this country, said that virginia did not have the right to sue to defend its own law. we had our own law that said you cannot be forced to have health insurance against your will. their decision that we did not have standing was an absolute liar in these cases -- absolute outlier in these cases. >> where do you see that going? >> if the supreme court applied the ruling to our case, they

will be implicitly overruling the fourth circuit as it relates to standing, because that is a jurisdictional question. for viewers, if you do not know jurisdiction, you do not get to the other questions of the case. so they will have implicitly overruled that position of the fourth circuit. that's what i'm hoping. >> so you are saying if they rule it unconstitutionally, why would that speak to your standing? >> no, if they apply the ruling to our case as well. remember, our case is before the supreme court. >> right. but you are hopeful they will take that extra step? >> yes. >> and that is not at all uncommon for them. when they get cases with common elements, there are more cases from the sixth circuit. i would expect the ruling to be applied to the other cases. that happens all the time. i think of menendez, the criminal case i dealt with in virginia. they have several of them on hold. they apply the ruling to all of

those except virginia's. we argued our case, and they said, well, menendez covers this. and they said well, we don't want to be overlooked again. >> i think that everyone presumes justice kennedy is the swing vote on this. >> i think everyone presumes justice kennedy is the swing vote on this. the states can invade federal authority and the federal government can invade state authority. and the federal government cannot invade state authority. if we lose this case, federalism is effectively dead. that is very inconsistent with justice kennedy's very consistent jurisprudence in this area. i view a ruling by justice

kennedy that the individual mandate as constitutional would be a substantial departure from his past jurisprudence. there are others that do not thi think it is as substantial. justice scalia was in the majority in the last commerce case in 2005. that is a cause for concern. it was unique. that case was about marijuana. there are some people who think that certain justices will extend themselves to bring anything drug-related within the federal power. justice roberts, some people look at his joining the majority in the comstock case the week before the federal government filed their motion to dismiss as a harbinger of doom for our

side. i do not see it that way, despite the very broad language of the case, which was a necessary and proper clause case. the very last paragraph of the majority opinion brings very broad language down through a very thin funnel. the federal government cannot get this bill through that funnel. there has not been enough time since that case to assess how justice roberts will come out. >> seth has been following the national, political, presidential campaign. this decision is right in the middle of it. >> let's talk about political ramifications. what do you see, win, loss? how will this affect the presidential race? and your races in virginia? >> well, i think, and this is just one man's opinion who has not backed a candidate at this point, that the race is just down to two people effectively,

though ron paul and newt gingrich could affect it. one of them was riding in favor of a national mandate. versus santorum, obviously, who has not. in 2010, just in virginia, we went from 6-5 democrat-republican congressional delegation to 8-3 republican. the health care case had a huge amount to do with that. it was the biggest political flub of 2010. republicans picked up more seats than in years. it has been a long, long time. one thing that people voting, as between ronald and santorum are doing, they are deciding whether to give up that issue. for romney to get out and say, i would repeal it, is fine. it does not have the power to politically motivated people to

volunteer that someone who has been a permanent opponent does. you effectively give that up if you select romney as the nominee. we may end up doing that. the economy has much more to talk about than his focus, but i do think this issue plays a big role in that, and santorum is leveraging that as much as he can. >> santorum accuses romney of supporting the federal mandate. do you think romney supported the federal mandate as santorum says? >> if what i read is correct, yes. he was the model for the national version, and i do not think that is a surprise to anybody. romney correct the distinguishes between the constitutional aspects of doing it at the federal level as opposed to the state level. but if what i have seen is accurate and he supported it at the national level as well, like newt gingrich, i have a problem with that.

>> did you support romney in the primary in virginia? >> no, i stayed out of that. >> you did not vote? >> oh, no, i voted. i'm not going to tell you who i voted for. >> but you -- >> we did not have gingrich and santorum on the ballots. i do not miss -- i try not to miss elections. in 2008, i did not the candidate publicly either. i have stayed out of it. in virginia -- it was particularly peculiar this year because gingrich and saven tomorrow were not on the ballot. >> there are these exchanges. the choices are that the state establishes and run their own or the federal government comes in with their own version. virginia has been sort of treading that middle path of doing some preparation.

yet, in the general assembly in this session, they did not take the final step that they were planning. there is a deadline coming january 1st where states have to show they have made sufficient progress in the order for the federal government not to step in with its version. what is your stance on the general assembly's decision? >> first of all, the thinking is, we have a very short session. as we sit here talking, the virginia general assembly session is over. the governor expects, if we lose the case, to call a special session to deal with that. that is my understanding at this problem. i do not speak for the governor on that, but that is my expectation. we want to control our own destiny as much as possible in virginia. if the law stands and we are given the choice between the federal-governed exchange or a state-governed exchange, i would expect virginia to go in the direction of the state-government exchange.

it is worth noting that the federal government has not kept virtually any of its own schedule on any of this. holding the states to the schedule they laid down strikes me as unreasonable. one reason is simple fairness. two, logistically, one thing leads to another. as we learn other elements of the system that we're going to be plugging into as an exchange, if that's the route we have to go, it informs what we do in that exchange. if they get behind on other things, it makes that more difficult to execute on. >> they have said they will stretch a little bit on january 1st as long as states shows sufficient progress as opposed to full progress. would that be sufficient time? >> from the very beginning, the

schedule they laid out was unreasonable, to put it politely. that being said, a steady and aggressive effort has been made to prepare virginia if we lose. we're talking about winning and losing as if it is binary. this could be a baby-splitting exercise. this could be considered unconstitutional and only part of the bill taken off of the table. if you take the private insurance piece off but leave the medicaid piece in place, which is phenomenally expensive. by virginia's standards, a massive expansion of medicaid, what that will do to things like the exchange preparation, it might just wipe it out. frankly, i am not real sure about that. we will have to see what the supreme court does. we're going to have some scrambling to do as lawyers if we are dealing with that situation. we're going to be recreating something a little bit different

than what we foresee. >> if mitt romney is the nominee -- >> no. human beings are human beings. the level of motivation that people may bring to the table may be different for conservatives. they are coming out. this is the most important election in the lifetimes of anybody alive right now. from a conservative standpoint, the downside of losing this race is almost too much to contemplate. i mean, this president and his administration are the biggest lawbreakers to run the federal government in our lifetime. and they are trampling the states. they are suffocating economic opportunity the way they are functioning. i don't think any of the nominees are going to do anything but reverse that trend

at least. at least you need to play by the rules. the rules being the law and the constitution. and that's not happening right now. >> expand on that a little bit. what do you think just in general? >> well, first let's start with the good. this administration has done a better job than the bush administration in addressing criminal illegal aliens. they have been a lot more cooperative than the bush administration in helping us move those who are breaking criminal laws into the deportation process and out of the country. better than bush -- they are doing that better. the apparent trade-off is they seem to have come to what amounts to a screeching halt on the civil side of that. you asked about the lawsuits and some of the voter i.d. bills. let's start with the voter i.d. refusals by the department of

justice, the pre-clearance objections. we have one coming up in virginia. it's different than the laws so far. you don't need a photo i.d. necessarily, but you need a utility bill with your name on it or something like that. out of indiana came the supreme court case where that noted right winger, justice john paul stevens, in a 6-3 majority, said that voter i.d. laws are perfectly constitutional. the point of the voting rights act is to keep states operating constitutionally. clearly, in my view, doj has overreached its voting rights act authority in rejecting south carolina, texas. i do not know of george it is in on that as well -- if georgia is in that as well. their voter i.d. laws. that will get litigated, and d.o.j. i expect to lose.

>> have you looked into how different or similar it is? >> it is different. for example, while south carolina requires a set of i.d.'s with a photo, and they will bring a bus to your house if you can't travel. they have free ones and all those things. they have brought down the barriers extraordinarily. virginia is a little bit different. we will let you use a utility bill with your address, it is the same as your address on the voter rolls. if someone is going to cheat and fraudulently vote, how are they going to get a utility bill? it raises a major hurdle on the fraud front. and that is the goal. >> do you think it will pass muster with the justice department? >> given what they are doing with the other states, i do not know. i would give it a 50/50 shot.

we got cleared on our congressional lines. we had electrics last year under the new lines. now virginia has gone nine years without d.o.j. objection. if we get through 2013 with no voting rights act objections, i believe we would qualify to ask to opt out, which would be very interesting in 2013. >> the tea party. where is the tea party? is it dead? >> no, it is not dead, but it is certainly all over the map. tea party brings a great, new force to the table that is not with in the other parties. it is very idea-driven. it has the blessing of many new people who have never been engaged before. that is a great blessing. it is also part of the challenge. experience does help with some things. the challenge that tea party has been facing in virginia -- and i know it is not the same all over the country, because this is a

very organic movement. they have not been able to coalesce around candidates over the few years they have been functioning. in our state house, they have done a good job coalescing around a couple of issues. health care law in virginia was the top tea party priority in the 2010 general assembly, and they got it on a bipartisan basis. we now have a 20-20 senate. so it's a roll of the dice here. they have not succeeded in coalescing around candidates in virginia. >> how about george allen? are they going to coalesce around him? it seems like there is a lack of enthusiasm for his candidacy this time around, compared to years past. >> i learned a lot from his 1993 race. none of his senate campaigns

look anything like that. it is different, i will say that. because virginia will be ground zero in the presidential race and because the senate is so close -- we're going to be very competitive in the u.s. senate race. i think he will see a lot of activity. i am not concerned that people will just forget about that race and it won't get the level of attention or effort that it requires. >> and another health care issue. the contraception coverage issue. where do you come down on that? >> one point i make about the overall federal health care bill and the litigation we are conducting against particularly the individual mandate is that the case is not about health care, it is about liberty. the bill is about health care and other things that they threw in, but the litigation is about liberty, whether the government

has the ability to compel you in this way. there is an argument he made -- to be made, which is no accommodation at all, it is rhetorical shell shifting on the table. it is deeply offensive to a lot of people who have no real stake in the churches vs contraception, sterilization, abortization debate. but they are very interested in the compelling of the church. as cardinal dolan said, well, they have given us a year to violate our conscience. how generous. interestingly, like some other things they have delayed, this administration has delayed past election day, this one may really hurt them. the way to fix the problem is to get a new president. that is obvious to everyone. i oppose this mandate. legally, the best shot at it is the religious freedom restoration act.

rfra. >> the supreme court has ruled a wide range of these kinds of mandates accessible when applied. >> i agree. we just had to table a case. 9-0 with justice kagen, of all people, calling the federal government's argument "amazing." when one of their own appointees says that about their arguments, i think they may be in the realm of overreaching. and the back to that three days or arguments. will you have a seat in that courtroom to listen? >> they haven't stated what the rules are to get a seat. but i am a member of the supreme court bar. i am looking at whether or not i can get in. i know that they will do a great job for the limited government side. i would very much like to be there for it, having been through about two years of this.

but that is still unclear. that is still unclear. they make their own rules and they change them case-by case to a certain degree. >> thank you for being here. just finished a conversation with virginia's attorney general. ken cuccinelli. because he has been so involved in the health care law, he has suggested that, in the race between mr. santorum and mr. romney, people will have to make the decision about how important health care law is to them. >> he basically said, if we go with romney, you're giving that issue away to president obama. he did that without endorsing

santorum and without telling us who he supports. >> he also made a couple of how -- couple of critical comments on the health care debate. may the point of how critical the health care vote was to virginia voters. how important is health care to voters this time around? >> the polls consistently show that it is about jobs and the economy. the public remains stubbornly divided on this issue. that said, it continues to dominate the news. we have the contraception-coverage rule. that took a lot of attention and oxygen now of the discussion -- out of the discussion. was that working for the republicans or democrats? it has this way of warning itself into the public's consciousness -- worming its way into the public's consciousness. >> it feeds into a broader narrative against president obama, that we are small

government, limited-government types. the individual mandate is the c

>> we could not cover it all with the attorney general. we had an interesting post-dating conversation about virginia's contraception, ultrasound legislation -- where d.c. this question going in the upcoming primary? >> he will ask for accommodation on the contraception-coverage rule. some have not accepted it. they say they are in discussions about coming up with further accommodations. i talked to these groups all the time. they are meeting with the white house. they are still in discussions. the question is, do they announce some new version of an accommodation before the elections or after? they might try to make the issue go away so they can get more people on their side. on the other hand, they might inflame the issue further that much closer to the election. i think it is going to be an ongoing issue. -- they're not going to drop it. >> it depends on