The Real Deal Appeal Of Repeal, Part 4

Virginia AG Ken Cuccinelli has become the de facto GOP point man on the efforts to overturn health care reform, and he's confident that the matter will go before the Supreme Court relatively quickly, but they have to start with the federal district court.

"Just statistically, we're most likely to survive standing, and then we have a better than even chance of winning on the merits," he said in an interview Tuesday, a day after the federal government filed a response to his suit. "I wouldn't go farther than that. I wish I could."

At the same time, a loss would strengthen the hand of those who have argued that Cuccinelli's suit is frivolous with little chance of success, and, for that reason, Cuccinelli argues his suit is a marathon that will undoubtedly be decided by the Supreme Court. Winning along the way to Washington would be more fun than losing, but not a necessity.

"Nobody likes to lose, but we're in this for the long haul," he said. "We understand this is going to be decided ultimately by the Supreme Court, and that's the course we're on, regardless of what happens in the district court or the 4th Circuit. ...You take them one at a time -- you don't think about the next drive until you finish your putt."

Cuccinelli said he realizes he faces the burden of proof in convincing judges the law is unconstitutional. But the federal government faces "the burden of persuasion."

"The federal government has a significant burden in convincing judges they can order people to do something, to go buy something, under the guise of regulating commerce, when that has never ever ever been done before in the history of the United States," he said.

It still amuses me that the idea of an insurance mandate was originally proposed by and fully supported by Republicans like Chuck Grassley.   I've gone over the legal arguments for and against the constitutionality of mandates before, and they are worth looking at again.  The fact of the matter is the courts have already decided on several occasions that the Commerce Clause extends this far, most recently five years ago:

Numerous constitutional scholars say the mandate is well within the scope of what the court has defined as commercial activity -- pointing to the 2005 case, Gonzales v. Raich, in which the Supreme Court found that the federal government could criminalize the growth and possession of medical marijuana, even when it was limited to within a single state, on the grounds that doing so was part of an effort to control the interstate drug trade.

This lawsuit is just a cynical political exercise, nothing more.  They're wasting time and state tax dollars, which the TAXED ENOUGH ALREADY crowd doesn't seem to care about all of a sudden...