A Publication of Hillsdale CollegeImprimis                                 Over 1,900,000 Reader s Monthly                ...
Hillsdale College: Pursuing Truth • Defending Libert y since 1844    	 Thankfully, though, in the last sev-              S...
April 2011 • Volume 40, Number 4  hillsdale.eduas activity in the government’s argument.Clearly, someone in Washington nee...
Hıllsdale College Cruıse    Rio De Janeiro to Buenos Aires    February 20 - March 3, 2012    Aboard the Crystal Symphony  ...
aPril 2011 • Volume 40, number 4  hillsdale.eduadvancing a political agenda, it is no lon-       designed for the very pur...
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Pi 2011 04 imprimis

  1. 1. A Publication of Hillsdale CollegeImprimis Over 1,900,000 Reader s Monthly April 2011 • Volume 40, Number 4Reasserting Federalismin Defense of LibertyKen CuccinelliAttorney General of Virginia Ken Cuccinelli was elected the Attorney General of Virginia in November 2009. From 2002-2009 he was a member of the Virginia State Senate. Prior to that he was a partner in the law firm of Cuccinelli and Day, where he specialized in business law. A graduate of the University of Virginia, he has an M.A. in international relations from George Mason University and a J.D from the George Mason University School of Law and Economics.The following is adapted from a speech delivered on April 1, 2011, in the “First Principleson First Fridays” lecture series sponsored by Hillsdale College’s Kirby Center forConstitutional Studies and Citizenship in Washington, D.C.Some favorite Virginians of mine who inspired and crafted our federalConstitution—Mason, Madison, Jefferson, and Henry—also drafted the Constitutionof Virginia. And in the latter, they included a critical statement that said, “Nofree government, nor the blessings of liberty, can be preserved . . . but by frequentrecurrence to fundamental principles.” Our founders well understood that our liberty could not be preserved withoutfrequently referring back to first principles. But while they pledged their lives, theirfortunes, and their sacred honor to defend those principles, we have often takenthem for granted, as we have become complacent in thinking that government willtake care of every problem. We have asked government to do more for us, and all the government asks for inreturn is a little bit more of our liberty. Over the decades, we kept asking. And becausethe courts and the politicians were all too happy to oblige, regardless of what theConstitution said, we no longer have a federal government of limited powers. We havean overreaching central government—a government that seeks to plan and control vir-tually every aspect of our lives and our economy, from health care, to energy, to auto-mobile manufacturing, to banking and insurance. hill sdale.edu
  2. 2. Hillsdale College: Pursuing Truth • Defending Libert y since 1844 Thankfully, though, in the last sev- Shades of King eral years, people have woken up and are pushing back. With this pushback, we are George III seeing the idea of federalism reemerge. People want to return to a government Let me explain a bit about our lawsuit. of limited, enumerated powers, and an Our first legal argument is that the gov- arrangement in which states serve as a ernment’s attempt to use the Commerce check when the federal government over- Clause of the Constitution to mandate steps its constitutional bounds. the purchase of a private product—in In the current lawsuits brought by this case, health insurance—goes beyond the states over health care and against Congress’s power. The reason there has the EPA, state governments are pushing never been a mandate like this in all of back and reasserting federalism as the American history is because, up until Founders intended them to do. Indeed, now, everyone knew Congress lacked the I am not aware of a time in history when power to impose one. this many states have sued the federal I often give the example of the government to rein in its power: Today, colonial period, when the colonists more than half are parties to lawsuits were boycotting British goods while against the new health care act and its demanding that King George III and individual health insurance mandate. Parliament repeal the Stamp Act and Virginia was the first state to argue the Intolerable Acts. I am sure it was to in federal court that the new health the king’s dismay, but his own lawyer— care law is unconstitutional. When we the solicitor general—told Parliament brought the suit in March 2010, most that the boycott was legal under British media outlets and law. In other words, many legal experts −´ the colonists could Imprimis (im-pri-mis), said we stood no [Latin]: in the first place not be forced to buy chance. One law British goods. Editor professor said our Douglas A. Jeffrey Yet in 2010, we argument about con- Deputy Editor had a president and a stitutionality was, if Timothy W. Caspar Congress who believed Copy Editors not frivolous, close Emily Thiessen they could compel to it. Another legal Monica VanDerWeide Americans to buy a pri- Art Director expert said our case Angela Lashaway vate product even when relied on a “contro- Marketing Director the king of England, versial reading of Fred Hadra whom we rebelled Production Manager against, knew he did the Constitution.” Lucinda Grimm Apparently, it is con- Circulation Manager not have that power. troversial to apply Wanda Oxenger And back then, we were the Constitution as it Staff Assistants Robin Curtis merely subjects! was written. Kim Ellsworth The federal govern- Kathy Smith But back in Mary Jo Von Ewegen ment has argued in December, when a court that not buying federal judge ruled Copyright © 2011 Hillsdale College health insurance is as The opinions expressed in Imprimis are not in Virginia’s favor necessarily the views of Hillsdale College. much of an economic that the mandate is Permission to reprint in whole or in part is activity as buying it, hereby granted, provided the following credit unconstitutional, line is used: “Reprinted by permission from and therefore that it assertions that we Imprimis, a publication of Hillsdale College.” can regulate a citizen’s Subscription free upon request. did not stand a decision not to buy ISSN 0277-8432 chance faded fast. Imprimis trademark registered in U.S. government-approved Patent and Trademark Office #1563325. health insurance under the Commerce Clause. Nonactivity is the same2
  3. 3. April 2011 • Volume 40, Number 4 hillsdale.eduas activity in the government’s argument.Clearly, someone in Washington needs An audio version of Imprimisa dictionary. is available online at That same reasoning could be used to hillsdale.edu/imprimisforce us to buy cars, vegetables, or gymmemberships. If Virginia loses this suitand the federal government is allowed to plans, and real health care reform is oncross this line, Congress will be granted hold until the Supreme Court rules. If wea virtually unlimited power to order us do not get this suit resolved as quickly asto buy or do anything. It would be the possible, we impose crippling uncertaintyend of federalism—not to mention indi- on the states, businesses, individuals, andvidual rights—as we have known it for our entire economy.more than 220 years. There is also a secondary argumentmade by defenders of the health care Liberty as anact. The Obama administration’s fall- Environmentalback position if it loses its CommerceClause argument is to say that the fine Principlefor not buying government-approvedhealth insurance is not a penalty, but a As bad as the federal health care law is,tax. The administration is asserting this the economic consequences of what thebecause a tax to pay for a health care EPA has in store for us will be equallyscheme would be constitutional under damaging to our freedom and our econ-Congress’s taxing authority. We argue omy. Thus the EPA is another front inin response that the government cannot Virginia’s federalism fight.all of a sudden start calling a penalty a In December 2009, the EPA declaredtax to try to make the law legal. In fact, that carbon dioxide and other greenhouseevery court that has heard the govern- gases are pollutants dangerous to publicment’s tax argument has rejected it. health because they are alleged to cause When Congress and President global warming. This finding gave theObama debated the health care law, agency the immense power to regulatefor political reasons, they repeatedly CO2 emissions—and remember, this dan-said that the fine for not buying health gerous pollutant, carbon dioxide, is whatinsurance was a penalty, not a tax. And we exhale from our bodies every secondindeed, under the law they passed, they of every day.structured it as a penalty. So now the For the ruling, the EPA relied primar-administration is both flip-flopping and ily on data from a United Nations globalmisrepresenting facts. warming report. Emails leaked in 2009 We will soon see which arguments the in the Climategate scandal showed thatappeals court agrees with, because we will some of the world’s prominent climatolo-be arguing the case in the U.S. Fourth gists manipulated data to overstate theCircuit Court of Appeals on May 10th. effects of carbon dioxide on the environ-Whatever that ruling, the case will end up ment. Much of the U.N. report relied onin front of the U.S. Supreme Court. That that questionable data, and the EPA reliedis why we are also running a second track on that report. Since the revelations fromand asking the Supreme Court to skip the the leaked emails became public, someFourth Circuit and take the case directly. scientists involved in the report have hadWe have asked the court for this expe- to back off some of their positions anddited review because states are already research. Renowned climate researcherspending huge sums to implement their Judith Curry of Georgia Tech, a long-portions of the health care act, businesses time proponent of the global warmingare already making decisions about theory, admitted recently that there is nowhether to cut or keep employee health question that data in the U.N. report was 3
  4. 4. Hıllsdale College Cruıse Rio De Janeiro to Buenos Aires February 20 - March 3, 2012 Aboard the Crystal Symphony Speakers to be announced! spaCe is liMited! • buZiOs • itaJai for more information • ilha grande • punta del este or to reserve your cabin, please call Moneyshow at • paraty • MOntevideO • santOs/sÃO paulO (800) 797-9519. misleading, and that “it is obvious that Fahrenheit. Lisa Jackson, head of the there has been deletion of adverse data” EPA, in testimony before Congress, called that would work against the theory of this amount of temperature difference rapid global warming in the last century. “immeasurable.” But that has not stopped Pursuant to this, in February 2010, the agency from trying to move the new my office petitioned the EPA to reopen auto regulations forward. its hearings on greenhouse gases and Greenhouse gas regulations will also review new evidence. Instead it ignored cost businesses hundreds of millions of our request—in fact, it ignored the law. dollars in increased energy costs, and So we filed a federal lawsuit to force the could price several industries out of busi- hearings to be reopened, and we are still ness or force them overseas, resulting in awaiting our day in court. permanent job losses. If the EPA is allowed to move forward These are serious consequences of deci- with its regulation of carbon dioxide, sions made by unelected bureaucrats. All costs to every American household are we are asking the EPA to do is to look at all projected to increase by $3,000 a year due the data, not just the data that supports the to higher prices for energy, food, clothing, pre-conceived views of the people in charge. and any other goods that require energy For my challenges to these rules and to manufacture or transport. Talk about to the federal government, I am accused taxing the poor! of being a flat-earther and an enemy of In a document the EPA published on science. Nothing could be further from regulating greenhouse gas emissions in the truth. I am not only an attorney; I was cars and light trucks, it admits that its also an engineer. As a former engineer, I new rules would add about $950 to the have a certain trust in science: the math, price of each new vehicle. And buried the scientific method, the certainties of deep in the report, the EPA’s own models the laws of physics, and the objective show that over the next 90 years these quest for new answers. But when science regulations would only reduce tempera- gets tainted by politics and money, and ture increases by less than 0.03 degrees facts are set aside in the name of4
  5. 5. aPril 2011 • Volume 40, number 4 hillsdale.eduadvancing a political agenda, it is no lon- designed for the very purpose of helpingger science. to preserve that liberty. And contrary to the image some in the While we can derive some satisfactionmedia have created, I do not have a battle from last November’s election results aswith environmental protection. In fact, a backlash against the centralization andmy office works in close coordination growth of raw federal power, we cannotwith our Virginia regulatory agencies to repeat the mistakes of the past where con-enforce environmental laws. I also have servative victories were followed by liberalseven children who will be on this earth policies. We must ensure that the newlyfor the better part of this century, and I elected officeholders have learned fromhave a vested interest in seeing that they past mistakes. We must hold the repre-have clean air, water, and land. sentatives we put into office accountable But I also have a vested interest in see- to first principles, and then demand froming that my children have the opportunity them concrete action. For the failure ofto get good jobs and achieve at least the conservative principles has not been due tosame standard of living we have today. That the principles themselves, but to the failuremeans we have to balance care for our envi- to fight for them.ronment with care for our economy. At a time such as this, when principled We also have to recognize that eco- conservatives do not control the reins ofnomic growth underwrites environmen- power in Washington, state attorneys gen-tal protection. Wealthy countries pay eral become the first line of defense againstfor environmental improvement, and federal government overreach. When Ihealthy economies are critical to it. The ran for Attorney General of Virginia,only places on earth that have strived I said that if the federal governmentfor a clean environment share two key crossed certain lines, I would challenge it.characteristics: free people and free mar- Unfortunately, we have a federal govern-kets. Economic success will help deliver ment that is giving us more opportunitiesenvironmental improvement far more to challenge it than I would like. But weeffectively than any number of forcibly- are keeping our promise. With fellowapplied regulations. Yet we are gradually Virginians and the American people, wesuffocating our free market economy have planted our flag and we are takingwith command-and-control regulations a stand. And if we are successful, futurefrom our federal government. generations of Americans will have a chance to enjoy the liberty that has madeFreedom in America the envy of the world. Success in this fight for federalism isthe Balance critical, for as Ronald Reagan warned us: With the EPA’s attempts to regulate Freedom is never more than oneour lives by regulating the by-products generation away from extinction.of practically everything we buy and We did not pass it to our childreneverything we do, and with the federal in the bloodstream. It must begovernment’s attempt to assume the power fought for, protected, and handedto command us to buy its chosen health on for them to do the same, orinsurance, we face one day we willsome of the most sig- spend our sunsetnificant and unprece- years telling ourdented erosions of lib- children and ourerty in our lifetimes. children’s children did yOu KnOW?And federalism—that what it was once t he Hillsdale College gr aduatingtension between state class of 2011, in conjunction with the like in the Unitedsovereigns and the fed- president’s office, has selected journalist States where men and novelist Mark Helprin to delivereral government—was this year’s commencement address on were free. I saturday, May 14. 5
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