Virginia Tomorrow

Much has been written about the “Cuccinelli Crusades” challenging the national government, but most of it is lumped with political speculation and his unfortunate letter to our public colleges and universities on sexual orientation discrimination policies. 

 This discolors any dispassionate analysis of the underlying merits and the legal and philosophical underpinnings for his forays into the turbulent and unpredictable waters of the federal judiciary.  Recognizing the value of taking small bites of complex issues, let’s focus only on his challenge to the individual mandate in the recently enacted National Health Care legislation.

We start with the proposition that the national government is one of limited powers and that while sweeping terminology describes those powers, they are limited in some way or the Tenth Amendment is devoid of meaning and thus superfluous.

The Tenth Amendment is direct, simple and short:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Clearly implicit here is the notion that some spectrum of “powers” were not delegated to the United States by the Constitution and whatever those are they belong to the States or the people.

Among the powers delegated to the United States is the power to regulate interstate commerce, and again the words of our founding charter are direct, simple and short:

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.

So, simply put: How broad is the power granted to Congress to regulate commerce “among the several states” and is there a limit somewhere that provides meaning to the Tenth Amendment’s reservation of some powers not delegated to the United States by the Constitution?

Only as an aside for those who maintain that judges only call balls and strikes and “don’t make law”, it should be clear even to them that these provisions in our fundamental law only gain meaning through judicial interpretation.  The strike zone isn’t exactly crystal clear!  We can argue-and we do-about how this task of judging should unfold.  But we cannot credibly argue that these provisions convey a bright line available for all to see, or that this line can be objectively determined free from the many subjective considerations that compose the judicial process.

So, back to our AG and the others who have taken on the individual mandate in the recently enacted health care legislation.  They argue that this requirement for an individual to purchase health insurance is beyond the powers granted by the Commerce Clause and within the powers reserved by the Tenth Amendment to the States, or here perhaps more importantly “to the people.”

Most assuredly with the history of the Supreme Court’s interpretation of the Commerce Clause, its reach has gone beyond what many believe can be justified within the concept of a limited grant of power and possibly destroyed any meaning to the provisions of the Tenth Amendment.

But that most assuredly has not yet been unequivocally established.  Some believe they have infallible insight into what our current Supreme Court will fathom from the depths of these two constitutional provisions, and that the individual mandate will be upheld.  Others, including our Attorney General, believe that this result is not so clear that an effort to draw a line short of allowing the national government to require an individual to purchase a good or service is indeed a cause worth pursuing.

And in my view it is.  Admittedly in prior decisions the Supreme Court has ruled that choices that result in the failure to purchase products moving in interstate commerce “affects” interstate commerce and therefore can be regulated by Washington.  The most famous is Wickard v. Filburn, a 1942 opinion that upheld legislation that prevented a farmer from planting his own wheat to feed his own cattle because he then did not purchase wheat moving in interstate commerce, which failure “affected” interstate commerce.

No doubt this and many subsequent decisions extended national power in a sweeping scope beyond what many believe our Founders ever imagined.  And based on this, the detractors of our Attorney General argue, in effect though they don’t expressly say it, “look there are no limits to the power of the national government to regulate commerce because everything we do ‘affects’ interstate commerce,” and it is quixotic to seek a judicial opinion to the contrary.

But in United States vs. Lopez, a 1995 Supreme Court decision, a 5-4 majority drew the line when Congress attempted to regulate under the Commerce Clause the carrying of guns on school grounds.  Finding that the targeted activity must “substantially affect or substantially relate” to interstate commerce, the majority opined that to extend the commerce clause this far would “require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.”

The task of judging here is to define over time just where this elusive line is drawn.  A “bright line” that allows precise calculation of where the limits of national regulatory authority may end is really not possible.  It may be more like what Supreme Court Justice Potter Stewart said about pornography, “I know it when I see it and … [this] is not that.”

Applied to the clash between the Commerce Clause and the Tenth Amendment, it might well be said that we don’t know exactly where the regulatory power under the Commerce Clause stops and the powers reserved to the states and the people begin.  But we “know it when we see it” and it stops somewhere short of allowing the national government to require a citizen in a presumptively free society to purchase a good or service or be fined.

Of course, the Supreme Court some years from now when the case arrives there might see it differently, but surely for those who believe in some meaningful separation between the national and state governments, and between all governments and those they govern, this issue is sufficiently momentous to merit the effort at definition.

Because Attorney General Cuccinelli and the Attorney Generals of 12 (I think) other states believe that line also falls short of this unprecedented limitation on free choice, they are embarking on a challenge through our courts where such battles must be fought.  This is most emphatically a proper role for his office and critics who complain that it is not or that he is “wasting” money, disclose their own affinity for this enormous reach of national power onto the landscape of freedom.

If the Attorney General for Virginia is not responsible for protecting the rights granted to Virginia and her citizens by the Tenth Amendment, pray tell who is.

So, for this one Virginian who differed with the AG on his sexual orientation position, both philosophically and legally because of constitutional guarantees under which the colleges and universities must act, our AG is on the mark.  I applaud this effort and dare to hope it may enjoy success.  As a practicing trial lawyer handling numerous complex matters, I have learned through the school of very hard knocks that predicting the outcome of cases is a precarious assignment, though to some extent trial lawyers must do precisely that.

Here prediction is not really possible but there are at least four justices on this Supreme Court who are philosophically disposed to limit national power, and a fifth who might be. 

So, “Cuccinelli’s Crusade”, as it has been dubbed, is not quixotic at all. 

Go get ‘em Cooch!!!

Wyatt Durrette is a Director at DurretteBradshaw, PLC (www.durrettebradshaw.com) and co-founder of the XDL Group. He served three terms in the House of Delegates and was the Republican candidate for Governor in 1985.