1. A Publication of Hillsdale College
Imprimis Over 1,900,000 Reader s Monthly
April 2011 • Volume 40, Number 4
Reasserting Federalism
in Defense of Liberty
Ken Cuccinelli
Attorney 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 Principles
on First Fridays” lecture series sponsored by Hillsdale College’s Kirby Center for
Constitutional Studies and Citizenship in Washington, D.C.
Some favorite Virginians of mine who inspired and crafted our federal
Constitution—Mason, Madison, Jefferson, and Henry—also drafted the Constitution
of Virginia. And in the latter, they included a critical statement that said, “No
free government, nor the blessings of liberty, can be preserved . . . but by frequent
recurrence to fundamental principles.”
Our founders well understood that our liberty could not be preserved without
frequently referring back to first principles. But while they pledged their lives, their
fortunes, and their sacred honor to defend those principles, we have often taken
them for granted, as we have become complacent in thinking that government will
take care of every problem.
We have asked government to do more for us, and all the government asks for in
return is a little bit more of our liberty. Over the decades, we kept asking. And because
the courts and the politicians were all too happy to oblige, regardless of what the
Constitution said, we no longer have a federal government of limited powers. We have
an 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.
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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 same
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3. April 2011 • Volume 40, Number 4 hillsdale.edu
as activity in the government’s argument.
Clearly, someone in Washington needs An audio version of Imprimis
a dictionary. is available online at
That same reasoning could be used to hillsdale.edu/imprimis
force us to buy cars, vegetables, or gym
memberships. If Virginia loses this suit
and the federal government is allowed to plans, and real health care reform is on
cross this line, Congress will be granted hold until the Supreme Court rules. If we
a virtually unlimited power to order us do not get this suit resolved as quickly as
to buy or do anything. It would be the possible, we impose crippling uncertainty
end of federalism—not to mention indi- on the states, businesses, individuals, and
vidual rights—as we have known it for our entire economy.
more than 220 years.
There is also a secondary argument
made by defenders of the health care Liberty as an
act. The Obama administration’s fall- Environmental
back position if it loses its Commerce
Clause argument is to say that the fine
Principle
for not buying government-approved
health 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 the
because a tax to pay for a health care EPA has in store for us will be equally
scheme would be constitutional under damaging to our freedom and our econ-
Congress’s taxing authority. We argue omy. Thus the EPA is another front in
in response that the government cannot Virginia’s federalism fight.
all of a sudden start calling a penalty a In December 2009, the EPA declared
tax to try to make the law legal. In fact, that carbon dioxide and other greenhouse
every court that has heard the govern- gases are pollutants dangerous to public
ment’s tax argument has rejected it. health because they are alleged to cause
When Congress and President global warming. This finding gave the
Obama debated the health care law, agency the immense power to regulate
for political reasons, they repeatedly CO2 emissions—and remember, this dan-
said that the fine for not buying health gerous pollutant, carbon dioxide, is what
insurance was a penalty, not a tax. And we exhale from our bodies every second
indeed, 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 global
misrepresenting facts. warming report. Emails leaked in 2009
We will soon see which arguments the in the Climategate scandal showed that
appeals 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 the
Circuit 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 on
in front of the U.S. Supreme Court. That that questionable data, and the EPA relied
is why we are also running a second track on that report. Since the revelations from
and asking the Supreme Court to skip the the leaked emails became public, some
Fourth Circuit and take the case directly. scientists involved in the report have had
We have asked the court for this expe- to back off some of their positions and
dited review because states are already research. Renowned climate researcher
spending huge sums to implement their Judith Curry of Georgia Tech, a long-
portions of the health care act, businesses time proponent of the global warming
are already making decisions about theory, admitted recently that there is no
whether to cut or keep employee health question that data in the U.N. report was
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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 of
4

5. aPril 2011 • Volume 40, number 4 hillsdale.edu
advancing a political agenda, it is no lon- designed for the very purpose of helping
ger science. to preserve that liberty.
And contrary to the image some in the While we can derive some satisfaction
media have created, I do not have a battle from last November’s election results as
with environmental protection. In fact, a backlash against the centralization and
my office works in close coordination growth of raw federal power, we cannot
with our Virginia regulatory agencies to repeat the mistakes of the past where con-
enforce environmental laws. I also have servative victories were followed by liberal
seven children who will be on this earth policies. We must ensure that the newly
for the better part of this century, and I elected officeholders have learned from
have 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 from
ing that my children have the opportunity them concrete action. For the failure of
to get good jobs and achieve at least the conservative principles has not been due to
same standard of living we have today. That the principles themselves, but to the failure
means 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 of
nomic growth underwrites environmen- power in Washington, state attorneys gen-
tal protection. Wealthy countries pay eral become the first line of defense against
for environmental improvement, and federal government overreach. When I
healthy 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 government
for 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 opportunities
environmental improvement far more to challenge it than I would like. But we
effectively than any number of forcibly- are keeping our promise. With fellow
applied regulations. Yet we are gradually Virginians and the American people, we
suffocating our free market economy have planted our flag and we are taking
with command-and-control regulations a stand. And if we are successful, future
from our federal government. generations of Americans will have a
chance to enjoy the liberty that has made
Freedom in America the envy of the world.
Success in this fight for federalism is
the Balance critical, for as Ronald Reagan warned us:
With the EPA’s attempts to regulate Freedom is never more than one
our lives by regulating the by-products generation away from extinction.
of practically everything we buy and We did not pass it to our children
everything we do, and with the federal in the bloodstream. It must be
government’s attempt to assume the power fought for, protected, and handed
to command us to buy its chosen health on for them to do the same, or
insurance, we face one day we will
some of the most sig- spend our sunset
nificant and unprece- years telling our
dented erosions of lib- children and our
erty in our lifetimes. children’s children
did yOu KnOW?
And federalism—that what it was once
t he Hillsdale College gr aduating
tension between state class of 2011, in conjunction with the like in the United
sovereigns and the fed- president’s office, has selected journalist States where men
and novelist Mark Helprin to deliver
eral government—was this year’s commencement address on were free. I
saturday, May 14.
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Get away to a relaxing retreat
at The Rockwell Lake Lodge.
Surround yourself with
the natural beauty of
the G.H. Gordon Biological Station,
while enjoying the hospitality and
411
amenities of an elegant lodge.
It’s a wilderness retreat with
the comforts of home.
Specıal Internet-Only
Offers Avaılable!
therockwelllakelodge.com
Call for reservations: (517) 437-3311