By: Ken T. Cuccinelli
February 10, 2010
Virginia is moving towards passing legislation that would make it unlawful to implement federal legislation to compel Virginia residents to buy health insurance, a/k/a, Obamacare. On Monday, February 1st, the Democratic-controlled state senate of Virginia passed a bill that would block the implementation of the individual mandate of Obamacare.
Some have argued that, constitutionally, federal legislation compelling Virginians to buy health insurance is no different than any other economic regulation imposed by Congress. That kind of “that’s the way we’ve always done it” thinking is not only incorrect constitutionally, but may help explain why reckless spending at the federal level has pushed America to the verge of bankruptcy.
It reminds me of an exchange between a reporter and one of the several Democratic committee chairmen in the House that are addressing the health care bill: The reporter asked the chairman “where in the Constitution does it say the federal government can mandate citizens to buy health insurance?”
The chairman snapped back: “Where does it say we can’t?!”
Sadly, like many of his cohorts, this chairman was blissfully unaware that if the Constitution doesn’t say the federal government can do something, then it can’t do it. And nowhere in the Constitution is the federal government given the authority to mandate citizens to purchase anything.
The bigger-government approach to the healthcare issue is clear cause to reexamine some fundamentals of how our government should operate. Our system of government is a republic. Before the Revolution, the sovereign was England. Following the Revolution, the power of the sovereign devolved to the people of the states, as explicitly noted in both the Declaration of Independence and the Constitution itself.
The states, as sovereign entities, granted express and limited powers to the federal government by way of the United States Constitution. To prevent one branch of the federal government from exceeding its express and limited powers, we have a “horizontal” system of checks and balances – the three branches of the federal government.
However, we also have a “vertical” system of checks and balances between the states and the federal government. This vertical system of checks and balances has been used too infrequently, but Virginia is now using it to declare our own law regarding healthcare freedom as a means to counteract an unconstitutional law (if it passes) at the federal level. This would create a conflict of laws.
But as James Madison wrote in Federalist 51, freedom is best protected when political ambition counteracts political ambition. Virginia is protecting the freedom of its citizens by “checking” the federal leviathan on the matter of healthcare.
The courts would need to resolve the coming conflict. Ultimately, however, the voters will decide: do federal politicians who may vote for Obamacare stand with the people and the Constitution? Virginians are saying “no” on a bi-partisan basis.
Too many people in Washington forget they get their authority – and I’ll add, their only authority – by a grant of express and enumerated powers from the sovereign states. But also as Madison wrote, that power “should be drawn from the same fountain of authority, the people.”
Our Virginia legislation, however, is important for other reasons. It may prove to be a model for other states to combat the reckless, out-of-touch ways of Washington. It has long been apparent that people are frustrated with government, but many people didn’t think they could do something about controlling such a behemoth.
Now people are figuring out the way to stop abuses of power which seem to be crippling our economy and eating away our liberty, is by using the Constitution against those who violate it. Leadership in this approach must come from the states.
It is the states that were expected to control the federal government, that’s why Madison said that the “different governments will control each other” in Federalist 51. The “different governments” are the state and federal governments. It’s part of our constitutional role as a state.
As attorney general for Virginia, I’m with Madison. The people of Virginia have every reason to expect that when the government violates the law – especially the supreme law of the land, the Constitution – there will be someone to protect them every bit as much as they are protected against violations of law by ordinary criminals.
For too long, the federal government has operated as if it granted authority and freedoms to people and the states. It’s time to start returning this system to its proper balance. The system has broken down, and that has real consequences for jobs, the economy, our security and our freedom.
Virginia’s history is steeped in protecting liberty – the foundation of our nation’s greatness. Once again, Virginia is taking the lead in protecting our citizens’ sacred liberty.
Ken Cuccinelli of Fairfax is Virginia’s attorney general.