The Biggest Set of Lawbreakers in America
There is but one element of government, and that is the people . . . For a nation to be free, it is only necessary that she wills it. For a nation to be slave, it is only necessary that she wills it.
—John Adams, 1814, Founding Father and second president of the United States
In March 2010, President Barack Obama and the Democrat-controlled 111th Congress did to the American people what the tyrant we rebelled against in 1775 couldn’t even do when we were merely subjects: they declared that they suddenly had the unprecedented power to force Americans to purchase private products in the name of whatever “public good” the federal government deemed appropriate.
In March 2010, that product was private health insurance, and the mandate to buy it was the centerpiece of the new federal health care law, the Patient Protection and Affordable Care Act, also dubbed Obamacare.
But this new power Congress and the president claimed for themselves had the potential to go far beyond the ability to force Americans to purchase just health insurance. The power could be used to force them to buy cars to prop up the ailing automobile industry, to buy gym memberships and vegetables to promote healthy lifestyles, or to buy virtually anything for whatever Congress and the president declared was the public good.
By passing the Patient Protection and Affordable Care Act (PPACA) with this individual insurance mandate, Congress and the president had violated the United States Constitution, as no such power to mandate private purchases had ever been given to the federal government. Unfortunately, without enough lawmakers in Congress willing to uphold their oath to “support and defend the Constitution of the United States” and vote against the unconstitutional act, it became law, and it fell to people like me and my fellow state attorneys general to take the federal government to court to attempt to stop its overreach. In other words, the states had to sue the federal government to protect the U.S. Constitution and our citizens from the federal government.
Though a mandate was unconstitutional, many Americans would embrace this newfound federal power to seemingly solve yet one more of our society’s challenges: health insurance that was too expensive and out of the reach of too many people. Fortunately, the majority of Americans saw this new mandate power for what it was: a diminishing of our liberty that would be difficult to undo, and a power that could just as easily be used for not-so-altruistic purposes down the road.
This book attempts to chronicle the courtroom and the behind-the-scenes fight against one of the greatest assaults on American liberty in our lifetimes—the federal health insurance mandate. I’ll also cover other lawless acts of what I call the biggest set of lawbreakers of our lifetimes—the Obama administration. No other president, no other administration has had such a willful disregard for the law.
The administration used its temporary majority in Congress as well as executive branch agencies like the Environmental Protection Agency (EPA), the Federal Communications Commission (FCC), and others to exercise control over the American people that it didn’t have the authority to exercise, and in the process, it trampled the sovereignty of the states, violated federal law, ignored federal courts, and violated the Constitution to achieve its goals of redistributing wealth, concentrating power in Washington, and rewarding its political allies.
Although I had many policy disagreements with the health care law and the other federal actions I’ll describe throughout this book, I won’t get into many policy discussions here, because that’s already been done elsewhere and because—as the attorney general of Virginia—I couldn’t sue the federal government just because I didn’t like its policies.
We Americans had seen our share of bad laws from Washington that punished achievers, harmed one class of people to advantage another, or ravaged the economy to put more power in the hands of government. But just because laws were bad policy and went against the principles of small government, that didn’t necessarily mean they were unconstitutional. For instance, I had said all along during Virginia’s lawsuit against Obamacare that if the federal health care law had been passed in a constitutional way—funded with a legal tax on citizens instead of as an unconstitutional mandate to buy a private product—I would have had no authority to sue. Fighting back on bad policy is the role of Congress and the people. If laws are onerous but constitutional, the only remedy is at the ballot box—by electing new members of Congress and a new president.
However, when the president is willing to ignore the law repeatedly or disregard the Constitution to force his radical policies on the American people and the states, state attorneys general like me are able to step up and push back in the court.
How did this fight with the federal government come about? To best answer this question, we need to refer back to the history of the United States—starting all the way back with the country’s founding.
In 1775, American colonists began to fight what initially seemed like a futile revolution to throw off the shackles of a powerful tyrant and struggle for their independence. Against the odds, they freed themselves from Great Britain and created a government of their own—one that would exist to secure and protect their newly won liberty.
The framers of the Constitution started with the premise that the government would derive its powers from the people and ultimately would answer to them. They painstakingly designed the Constitution—the document that created the federal government—to grant the government only limited powers, because they understood that a strong central government would be a constant threat to the cherished liberty they had recently won. Regrettably, in the centuries since the Constitution was adopted, we as a people have demanded that government do more to “fix” society’s problems—from poverty to high food costs to transportation issues—and to accommodate those demands, government has willingly grown beyond its original mandate.
We have ended up relying more on government and less on ourselves, our families, our churches, our friends, and our communities. With every new societal problem, enterprising politicians—backed by a cavalcade of cronies and special interests—have identified a new government program or agency to solve it. In the process, the principles of limited government have been pushed aside for what some deem “the greater good.” If the new program was unconstitutional or violated the law, well, then, they declared, that just meant the Constitution or the law wasn’t able to keep up with the times.
Few seemed to notice the cost of these solutions—not just in dollars, but in liberty. Every time we asked government to do something new, we had to transfer some of our authority to it to allow the government to carry out those solutions. Every transfer of our authority came at the expense of just a little more of our liberty. Bit by bit, our federal government gained more and more power, while the people retained less and less.
We had long forgotten Thomas Jefferson’s admonition that “eternal vigilance is the price of liberty.” We weren’t very vigilant, and we let people like President Obama’s former chief of staff, Rahm “you never want a serious crisis to go to waste” Emanuel, use real and perceived crises to convince people to let government grow its power at every opportunity.
Of course, President Obama wasn’t the only one who was to blame for accumulating so much power to the federal government to so thoroughly trample our liberty. That process had been a steady bipartisan march for more than the last one hundred years of American government.
The government’s growth of power over those years ultimately set the stage for 2009: Under the Obama administration, with a willing president, the government shifted from deriving its authority from the people to seizing authority from the people. The administration circumvented Congress to unilaterally change immigration law, defied a federal court order to regulate the Internet, bypassed the authority of the states to try to put the coal industry out of business, and worked with Congress to violate the Constitution to push mandatory health insurance on all its citizens.
We were finally confronting head-on the big-government leviathan President Gerald Ford had warned us about when he said, “A government big enough to give you everything you need, is a government big enough to take away everything that you have.”
This was exactly what our founders had feared. As a result of massive government growth, we had a government that existed to plan and control virtually every aspect of our lives and our economy, from energy to automobiles to banking, insurance, and health care. We had a government so large, powerful, and costly that not only was our liberty at stake, but so were our financial freedom and our very way of life.
But something remarkable also started happening in 2009 to counter all that. As our founders once did against a tyrant king, citizens and states began to push back against the federal government in an attempt to stop its out-of-control growth. As the government borrowed hundreds of billions of dollars from the Communist Chinese to bail out failed U.S. financial institutions, car companies, and American homeowners who were encouraged to buy houses they couldn’t afford, taxpayers started to get angry. And as talk of putting the American health care industry under government control became actual legislation working its way through Congress, citizens started to protest. Many organized, and the Tea Party movement—named in honor of the 1773 Boston Tea Party rebellion against the British Crown—emerged.
In February 2009, just weeks before the national Tea Party movement started to take shape, Newsweek ran an editorial by then-editor Jon Meacham titled “We Are All Socialists Now.” The editorial captured the American people’s frustration that government spending was growing at an unsustainable pace and government control of the American economy was unparalleled compared with any other time in our history. It also spoke to their frustration that it wasn’t only President Obama and a Democrat-controlled Congress that had caused it all, but that the previous Republican administration and Republican Congress—those whom they had expected to put the brakes on government expansion—had actually had their feet on the big-government accelerator, too:
In many ways our economy already resembles a European one. As boomers age and spending grows, we will become even more French. . . . The U.S. government has already—under a conservative Republican [President George W. Bush’s] administration—effectively nationalized the banking and mortgage industries [with hundreds of billions of dollars in taxpayer-funded industry bailouts]. . . .
[B]ut it was, again, under a conservative GOP administration that we enacted the largest expansion of the welfare state in 30 years: prescription drugs for the elderly . . . And it is unlikely that even the reddest of states will decline federal money for infrastructural improvements. . . .
Whether we like it or not—or even whether many people have thought much about it or not—the numbers clearly suggest that we are headed in a more European direction. A decade ago U.S. government spending was 34.3 percent of GDP, compared with 48.2 percent in the euro zone—a roughly 14-point gap, according to the Organisation for Economic Co-operation and Development. In 2010 U.S. spending is expected to be 39.9 percent of GDP, compared with 47.1 percent in the euro zone—a gap of less than 8 points. As entitlement spending rises over the next decade, we will become even more French.
It was this sense of America’s inevitable slide toward socialism that finally moved average citizens to organize into the Tea Party movement and become skeptical of both Republican and Democrat politicians. They started to take more of an interest in their government, educate themselves about politics, and even study the history of our Founding Fathers.
In all my years in politics, I had never seen such an interest in the Constitution and our founding principles as I saw emerge in 2009 with the Tea Party movement. I used to think I was one of only a small group of people who even read the Constitution and tried to abide by it, but it’s now commonplace to hear average citizens talk about the Constitution and limited-government principles in political discussions.
The American people had been asleep, letting their power go and their government grow. The Tea Party movement reawakened them to the fact that they could no longer take their freedom for granted. It also warned of what was to come if they didn’t do something to change course soon.
As a result, citizens started to take notice of what their elected officials were voting for. People began to study the Constitution to learn the legal limits of government authority. Protests in Washington and at congressional district offices and town halls across the country became the order of the day.
In the so-called summer of discontent in 2009, politicians were forced to start paying attention to their constituents a lot more. And the states started to realize that they weren’t wholly owned subsidiaries of U.S. Congress, Inc., ready and willing to carry out the orders of a Congress and a president whose actions were unconstitutional or contrary to the law.
It was in that tumult of 2009 that I was elected Virginia’s attorney general. While I took on the typical duties of a state attorney general, on the day I was sworn into office, like every other state and federal elected official, I also swore an oath to defend the Constitution of the United States. That’s an oath I took very seriously, even if others thought such an attitude was passé.
So when the federal government went so far as to disregard the law or overstep the bounds of its constitutional authority in such a way as to harm the Commonwealth of Virginia in the process, I had the legal authority to push back in court. And I did.
In fact, this was precisely the system that the framers of the Constitution had set up to keep the federal government in check. Just as the framers divided the power of the federal government among the legislative, executive, and judicial branches in a system of checks and balances to ensure each branch served as a watchdog over the others, so too did they divide authority for governing between the federal government and the state governments—a concept called federalism. Federalism is another level of checks and balances that allows the states to serve as a fail-safe to prevent the federal government from becoming so powerful that it becomes destructive of the very liberty it was instituted to protect. Remember “[to] secure the Blessings of Liberty to ourselves and our posterity” in the Preamble of the Constitution?
It was in this spirit of federalism—the idea of the states standing up to the federal government when it overstepped its legal or constitutional bounds—that Virginia and eventually twenty-seven other states decided to file suit over the 2010 health care act. I’m not aware of any other time in American history when so many states were plaintiffs against the federal government, attempting to rein in its power. It was a truly historical and critical test for our constitutional republic.
Excerpted from The Last Line of Defense by Ken Cuccinelli. Copyright © 2013 by Ken Cuccinelli. Excerpted by permission of Crown Forum, a division of Random House, Inc. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.