The Deeply Crazy In Virginia’s Obamacare Lawsuit

As  my Philadelphia Phillies idled through a two-hour rain delay Thursday night, I  curled up with some light reading: a Texas  Review of Law & Politics article by the legal team, led by Virginia  Attorney General Ken Cuccinelli, that’s challenging the new healthcare individual mandate in the U.S. Court of Appeals for the Fourth Circuit.

It’s  fascinating stuff.

Cuccinelli  and co. follow a long trail from the 18th century British jurist  William Blackstone to the Dred Scott  case to the New Deal to the present  day. The conservative team, at  first, makes a tight, prudential case against  the Obamacare mandate  that I, in my nonprofessional capacity, happen to favor.

In  their words:

No  existing case needs to be overruled and no existing  doctrine needs to be  curtailed or expanded for Virginia to prevail on  the merits. Nor does Virginia  remotely suggest that the United States  lacks the power to erect a system of  national healthcare. Virginia  expressly pled that Congress has the authority to  act under the taxing  and spending powers as it did with respect to Social Security and  Medicare, but that Congress in this instance lacked the political   capital and will to do so. No challenge has been mounted by Virginia to  the  vast sweep and scope of the Patient Protection and Affordable Care Act (PPACA).  Instead, only the mandate and penalty were challenged  because the claimed power  is tantamount to a national police power  inasmuch as it lacks principled  limits.

In  plainer, get-to-the-point English: We grant you the social safety  net  established under the “Roosevelt Settlement.” We recognize  Congress’s power to  regulate interstate commerce. We even grant that  this power could conceivably  deliver universal healthcare. But for  Pete’s sake, don’t try to include  “inactivity”—that is, not buying a  health insurance plan on the private  market—under its purview.

Because,  once you regulate the act of doing nothing, what’s left to regulate?

Er,  nothing.

Thus,  does the state’s power to tax and police become theoretically unlimited?

But,  later in the body of the piece, Team Cuccinelli begins to play  other, more  presently familiar cards. Glenn Beck fans will recognize  the faces in the rogue’s  gallery: Justice Oliver Wendell Holmes,  progressive philosopher John Dewey, and  others who, this argument goes,  created the post-New Deal legal and  philosophical edifice.

Wouldn’t  you know it, this welfare-state stuff constitutes a violation of natural law—which, ipso facto,  means economic laissez-faire—and a lurch into moral chaos.  Echoing the  newly popular Hayek, Cuccinelli’s article asserts the primacy of   economic rights while characterizing as relativistic the   not-exclusively-liberal jurisprudential argument that personhood and  dignity  precede the marketplace. (Last I checked, I’ve never seen an  unborn baby sign a  contract.)

Come  conclusion time, the piece sounds eerily like it’s not merely  advocating the  curtailment of an otherwise defensible attempt to  advance the national  interest, but rather like a full-throated  libertarian manifesto:

The  Progressive Meliorists had argued that they should  be accorded constitutional  space in which to make a social experiment,  agreeing in turn to be judged by  the results. The New Dealers carried  the experiment forward. Seventy years  later, results are in suggesting  that the experiment is living beyond its  means. The statist heirs to  the experiment say that it cannot and must not be  curtailed, so now  they claim this new power.

Social  Security and Medicare—an experiment! Just a temporary, 70-year blip on the  radar!

So,  in 46 pages, we proceed from modest and reasonable to deeply crazy.

It  behooves us to ask, what’s Cuccinelli’s endgame?

I  think we’ve seen this movie before.

By: Scott Galupo, U. S. News and World Report, August 18, 2011