HH: I am now joined on the Hugh Hewitt Show by Ken Cuccinelli, the attorney general of the great state of Virginia. Attorney General Cuccinelli, welcome, it’s great to talk to you.
KC: It’s great to be with you.
HH: Attorney General, I want to start by saying thanks for talking to the issue of whether or not pastors have 1st Amendment rights last week. Can you tell the audience what your message was on that subject?
– – – –
HH: He’s back now. So Mr. Attorney General, let’s start over. The key message for the pastors was what?
KC: That they can actually debate as individuals. They simply cannot speak in a way that suggests, for instance, from the pulpit, that their church endorses or opposes a particular candidate. They can, though, even with that restriction, they can speak to a vote on an issue of concern to that church, and how a particular individual voted, and be critical or supportive of how that individual voted, so long as they don’t suggest that person should be elected or defeated because of it. But there is a huge area of activity that people who are pastors can engage in. They can endorse candidates personally as long as they’re clear that when their church is identified, it’s for identification purposes only, not so that anyone would leave with the impression that their church supports that candidate.
HH: I sure hope that speech gets wide dissemination among pastors, ministers, priests, rabbis, everyone in the clergy in the United States, because they have a right to be robust in their 1st Amendment exercise, and you’ve laid it out. Now Mr. Attorney General, you are the lead counsel in one of the lawsuits against Obamacare, the one at the 4th Circuit. Can you give our audience an update on where we are, and what the latest lay of the land is?
KC: Well, we argued the case before the Appellate Court in the 4th Circuit on May 10th. It was the first appellate argument in the country. And at the end of that month, they asked for some additional briefing on one issue. And this past week, the Supreme Court decides a case called Bond, which we identified for the court as also relevant to some of the issues in the case. So it’s been, for a case that we argued on May 10th, it’s been fairly active. But we are now in a holding pattern awaiting a ruling from the three judge panel on the 4th Circuit. Probably, the earliest we would expect to see that is sometime in July. They did not give us a time frame for when we might expect that ruling. The district court, where we won in December, took two months to formulate its opinion, so it seems to me that two months is a decent starting point for the expectations for when we might hear, and that puts us in mid-July.
HH: So Mr. Attorney General, do you think that win or lose, you’ll be able to have a hearing before the United States Supreme Court before a year from now, the end of their 2011-2012 term?
KC: I do think that the Supreme Court will decide one of these cases, maybe it will be ours, maybe they’ll combine them altogether, probably next June, 2012, sometime, yes.
HH: Now then, let me ask you, a lot of people think this is a 4-4 case coming down to Anthony Kennedy. What is your analysis of Justice Kennedy’s jurisprudence with regards to whether or not the individual mandate will be upheld under the exercise of the Commerce Clause?
KC: Well, they haven’t had anything directly like this before. It’s one of the unique aspects of the case. It is not like something that’s gone before. But Justice Kennedy, just as in the Bond opinion he authored last week, has been a very consistent supporter of what’s called structural federalism, and that means the separation of authority between the federal government and the state governments, and that the states still have some separate and unique authority. The problem with, one of the problems with the individual mandate, if we lose this case, federalism is dead. There is very little left that is of unique authority under the Constitution for the states any longer, because if all the federal government has to do is order you to buy a product under the Commerce Clause, to make you do what they want, you know, if you sit and think about that for a while, that gives them an enormous swathe of powers that up until now they had not been thought to have.
HH: It certainly is. Do you expect, win or lose, that there will be an appeal for an en banc consideration out of the 4th Circuit? Or do you just want to get up to the Court?
KC: No, this is all going to be decided by the Supreme Court, so if we were to win, I would expect the federal government, in its ongoing attempts to slow down and drag this out, to ask for en banc review. And for your listeners, what that means is we were heard by a three judge panel in May. And en banc review is a review by the entire court, which is thirteen active judges, perhaps fourteen would sit. And you literally sit in front of all those judges, much like you would be before nine judges at the Supreme Court, and they all vote on the case after they hear the case and read the briefs, and so forth. So if we lose, I think the federal government will ask for en banc review. If we lose the case, we will ask for the Supreme Court to hear the case. I may have misstated that.
HH: You did.
KC: If we win and the federal government loses, they will ask for en banc review. If the federal government wins and we lose, we will ask for a straight appeal to the Supreme Court.
HH: Well, either way, that would be, would get there in a hurry, is what we’re hoping for. Let me conclude by asking you, Mr. Attorney General, what did you make of the Wal-Mart decision yesterday?
KC: Well, first of all, the fact that it was unanimous is extremely helpful. It certainly takes any doubt about it out of question. And people need to realize these class action suits are really pretty brutal for defendants. I mean, you’re not defending against a particular set of facts. You’re defending against, I don’t want to say a concept, but a course of conduct that’s alleged to have occurred. And then you have to prove a negative. You have to prove the notion that it didn’t never happen. Say that ten times quickly. You know, it really shifts the burden once you’re, in my view as a practical matter, once you’re in that situation.
HH: Mr. Attorney General, we’re out of time. I hope to have you back and continue the conversation on this and other legal issues. www.cuccinelli.org if you want to get to his website. He’s one of the great legal talents in America, and he’s on our side, America. That’s great news.
End of interview.