In the following Cuccinelli Compass (sent out 7 Jul 2012), Attorney General, Ken Cuccinelli points out just how badly one Supreme Court justice had to behave to get the decision she wanted.

ObamaCare Ruling: An Analysis

Dear Friends and Fellow Virginians,

In The Compass, I’ve been sending you pieces I’ve been submitting to various periodicals about the healthcare ruling.  This issue of The Compass is the first since last week with Compass-only material in it.  I’ll start with an incredibly short summary of all the constitutional pieces of the ruling, then I’ll offer a couple reflections on the tax power argument that   was the basis for upholding ObamaCare.

Also, I want to thank all of you that donated to my campaign for Governor last week.  The finance deadline came at a very unfortunate time, as my priority was naturally preparing for and responding to the Supreme Court ruling.  And less fundraising work by me means less fundraising, so your donations are appreciated all the more!

The Really Short Summary

It was a really bad ruling and ObamaCare lives on.  But we got a few rays of hope, including lowering the bar for repeal.  Now we have to win BOTH the Presidential and U.S. Senate races in Virginia in order to repeal ObamaCare.

How’s that for short?

Everything Other than Tax Power

Other than the taxing power, there were three other constitutional provisions addressed: the commerce clause, the necessary & proper clause, and the spending power.  The limited-government side won all three of these.

In the case of the commerce power and the spending power, the Supreme Court identified outer limits on federal power that have never existed since the   New Deal.  If that was all that happened, we would’ve had a huge win.  Painful.

I will address these three in a future Compass.

Taxing Power

While all the focus has been on Chief Justice Roberts’ opinion because his was the controlling opinion on virtually all issues decided, I want to start with a different opinion that hasn’t gotten any play on the tax question.  That is Justice Ginsburg’s opinion.

After I took a mental step back from Roberts’ opinion, I gradually remembered something in the oral arguments that I had found striking at the time, and that was Justice Ginsburg’s tax comments on BOTH Monday and Tuesday – the first and second days of oral argument.

Today, I pulled the transcripts to check my memory.

I confirmed my memory, namely, that on both Monday and Tuesday of the oral arguments, Justice Ginsburg stated definitively that the mandate and exaction at issue did NOT constitute a tax.

You read that right.  In fact, you can read it for yourself:

On   Day 1, on page 18 of the transcript, at lines 10-20 of the transcript, while discussing whether the exaction is a tax in the context of the Anti-Injunction Act, Justice Ginsburg said the following:

“JUSTICE   GINSBURG: Mr. Long, you said before — and I think you were quite right — that the Tax Injunction Act is modeled on the Anti-Injunction Act. And, under the Tax Injunction Act, what can’t be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to   penalties that are designed to induce compliance with the law, rather than to raise revenue. And this is not a revenue-raising measure because, if   it’s successful, they — nobody will pay the penalty, and there will be no revenue to raise.

For Justice Ginsburg, “Revenue-raising measure” = tax.  And   “this is not a revenue raising measure.”

Note that Justice Ginsburg is not asking a question, she is stating her position.  There is a big difference.

Day 2 was about the mandate.  And on page 48 of that transcript, at lines 4-15, Justice Ginsburg definitively restated her position that this is NOT a tax:

“JUSTICE GINSBURG: A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care [] risk pool before they need medical care. And so it will be successful, if it doesn’t raise any revenue, if it gets people to buy the insurance, that’s — that’s what this penalty is — this penalty is designed to affect conduct.

The conduct is buy health protection, buy health insurance before you have a need for medical care. That’s what the penalty is designed to do, not to raise revenue.

Note again that this is NOT a question.  Rather, it is a definitive statement of position.

Justice Ginsburg is not saying anything extraordinary here.  Nothing.  It is a generally accepted legal distinction to say that taxes are for raising general revenues to fund government, while a penalty is an exaction for failure to comply with a government requirement (i.e., to affect conduct by incentivizing compliance).

Oh yeah, and the entire independent portion of Justice Ginsburg’s written opinion on the tax issue took up all of two paragraphs on one page… of a 61 page opinion!

Seriously – 2 paragraphs on the basis of the ruling?!  Out of 61 pages???

So, what does this all mean?

It means that Justice Ginsburg flipped her tax position from the oral argument to the final publishing of the decision.

I  can only think of two reasons for Justice Ginsburg’s flip: 1) she changed her mind, or 2) she abandoned her own legal conclusion because it was the only way to have the law upheld.

Given Justice Ginsburg’s clear and repeated statements of her tax position during the oral arguments, the consistency of her position stated at oral argument with accepted legal distinctions between taxes and penalties, and the absence of any explanation for the flip, the evidence is overwhelming that Justice Ginsburg completely abandoned her own conclusions about taxes and penalties for the sole purpose of upholding ObamaCare.

Justice Ginsburg wanted a particular outcome and she provided one of the five necessary votes to get there, despite having to contradict her own legal conclusions

Needless to say, this is not what judges are supposed to do.  Our constitutional system relies on them NOT taking actions like Justice Ginsburg’s.

As you’ve probably read before today, the Chief Justice had to do two basic things to reach his tax power conclusion: 1) he had to rewrite the statute to be a tax instead of a penalty, even though Congress had explicitly amended the bill to avoid calling it a tax; and 2) he had to expand the known definition of a “tax” far beyond anything ever seen before. Only with those two undertakings could the Chief Justice uphold ObamaCare.  Sad.

So, Chief Justice Roberts rewrote the law AND blew the doors off the taxing power to uphold ObamaCare, and Justice Ginsburg completely abandoned what she demonstrably knew to be the constitutionally correct conclusion regarding the taxing power to uphold ObamaCare.

I’ll have several more write-ups later, so stay tuned for more.

Don’t worry, it won’t all be depressing.


Ken Cuccinelli, II
Attorney General of Virginia

So what does this boil down to? To get the decision she wanted, Justice Ginsburg violated her oath to support and defend the Constitution.

Does anyone who has read the Constitution and is the least bit familiar with our history believe that the five justices who supported Obamacare actually think that law is constitutional? Supporters can say the Supreme Court confirmed the constitutionality of the law, but is that really true? If I say a fire-engine red car is yellow, does my just saying it change the color of the car? What if I get an officialized body of “color experts” to back me up? For hundreds of years we have been calling a certain color red, but now this officialized body of color experts says we were wrong. When we were saying “red”, we non-experts should have been saying “yellow.” Sounds ridiculous? But that is what tyranny is where leads. When given the power, dishonest people will let nothing stand in the way of getting what they want, not even the obvious truth of the matter.


  1. Thanks for the update. I thought I was on Cuccinelli mailing list. But then I got sick and deleted almost everything to focus on my health only. I thought I kept him. Thanks for getting me back in touch, Now that I am better.


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