Cuccinelli for President?

The more I learn about Ken Cuccinelli, the attorney general of Virginia, the more depressed I become by the fact that he — or someone like him — isn’t in the White House.

For example, Cuccinelli’s office is investigating Michael “Hockey Stick” Mann, who (while at the University of Virginia) accepted State funds for his research. Here is part of the AG’s statement about the matter:

The revelations of Climate-gate indicate that some climate data may have been deliberately manipulated to arrive at pre-set conclusions.  The use of manipulated data to apply for taxpayer-funded research grants in Virginia is potentially fraud.  Given this, the only prudent thing to do was to look into it.

This is a fraud investigation and the attorney general’s office is not investigating Dr. Mann’s scientific conclusions.  The legal standards for the misuse of taxpayer dollars apply the same at universities as they do at any other agency of state government.  This is about rooting out possible fraud and not about infringing upon academic freedom.

That bare statement cries out for amplification. Here are portions of an analysis posted at Watt’s Up With That?:

Mann is the former UVA professor, whose “hockey stick” temperature chart was used to promote claims that “sudden” and “unprecedented” manmade global warming “threatens” human civilization and Earth itself. The hockey stick was first broken by climatologists Willie Soon and Sallie Baliunas, who demonstrated that a Medieval Warm Period and Little Ice Age were clearly reflected in historic data across the globe, but redacted by Mann. Analysts Steve McIntyre and Ross McKitrick later showed that Mann’s computer program generated hockey-stick patterns regardless of what numbers were fed into it – even random telephone numbers; that explained why the global warming and cooling of the last millennium magically disappeared in Mann’s “temperature reconstruction.”

The Climategate emails revealed another deliberate “trick” that Mann used to generate a late twentieth-century temperature jump: he replaced tree ring data with thermometer measurements at the point in his timeline when the tree data no longer fit his climate disaster thesis.

Not surprisingly, he refused to share his data, computer codes and methodologies with skeptical scientists. Perhaps worse, Climategate emails indicate that Mann and others conspired to co-opt and corrupt the very scientific process that Carr asserts will ultimately condemn or vindicate them.

This behavior certainly gives Cuccinelli “probable cause” for launching an investigation. As the AG notes, “The same legal standards for fraud apply to the academic setting that apply elsewhere. The same rule of law, the same objective fact-finding process, will take place.” Some witch hunt.

There is simply no room in science, academia or public policy for manipulation, falsification or fraud. Academic freedom does not confer a right to engage in such practices, and both attorneys general and research institutions have a duty to root them out, especially in the case of climate change research.

Then there is Virginia’s suit for “declaratory and injunctive relief” from Obamacare. Cuccinelli’s office recently responded to the feds’ motion to quash the suit. Here is the AG’s statement:

Virginia has responded to the federal government’s attempt to dismiss the state’s lawsuit against the new federal health care law, Virginia Attorney General Ken Cuccinelli announced today.

In its motion to the court to dismiss Virginia’s lawsuit, the federal government argued that Virginia lacks the standing to bring a suit, that the suit is premature, and that the federal government has the power under the U.S. Constitution’s Commerce Clause to mandate that citizens must be covered by health insurance or pay a civil penalty.  The government also made alternative arguments based upon its taxing power and the Necessary and Proper Clause.

“If the government prevails and Congress may use the Commerce Clause to order Americans to buy private health insurance, then Congress will have been granted a virtually unlimited power to order you to buy anything.  That would amount to the end of federalism and our more than 220 years of constitutional government,” the attorney general said.

Here is a brief summary of some of the arguments:

Federal government’s arguments to dismiss the case

Virginia’s response

Virginia is not injured by the federal health care law

Because the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act) under the Constitution’s Supremacy Clause, Virginia’s sovereign interests have been injured.

Because the mandate doesn’t take effect until 2014, the case is not “ripe”

1)  Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this does not prohibit the suit from being brought in the present

2)  Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid.  One of those decisions made the commonwealth forego more than $100 million in federal money.

Virginia’s suit is barred by the Anti-Injunction Act

The act does not apply to states under these circumstances, because Virginia’s action falls within an exception to the act that has been recognized by the Supreme Court

The government has the power under the Constitution’s Commerce Clause to mandate the purchase of individual health insurance

1)  The federal government’s argument is contrary to the text of the Constitution

2)  The federal government’s argument is contrary to the meaning of the words of the Commerce Clause as understood by the Founders

3)  The federal government’s argument is contrary to the historical context of the nation’s founding.  When Great Britain instituted a tax on tea, the colonists’ response was to boycott and to not buy tea.  Parliament had the power to regulate commerce, but even it did not attempt to force colonists to buy the taxed product.

4)  The federal government’s argument is contrary to the traditional uses of the Commerce Clause.  The clause has always been used to regulate economic activity; never inactivity.

5)  The federal government’s argument is contrary to the precedent of the U.S. Supreme Court.  The Court has set outer limits to the reaches of the Commerce Clause, including in cases such as Lopez and Morrison, saying that the clause must have principled limits, otherwise the federal government essentially would have unlimited power, rather than the limited powers enumerated in the Constitution.

Even if refusing to buy insurance is not commerce, the government can still force people to buy health insurance using the Constitution’s Necessary and Proper Clause.

1)  Since 1819, the Supreme Court has held that any use of the Necessary and Proper Clause must be consistent with both “the letter and spirit” of the Constitution.  Any interpretation that would destroy the federal form of government (where federal power is limited only to those powers enumerated in the Constitution, with remaining powers reserved to the states and the people) is not allowed under that standard.

2)  In May, the Supreme Court decided Comstock.

The Court adopted a historical approach to the use of the Necessary and Proper Clause. Because the mandate is utterly unprecedented, it is unlikely to be upheld under a historical approach.

Even if the government cannot win using the Commerce Clause and Necessary and Proper Clause arguments, the federal health insurance mandate can be justified under the government’s taxing authority.

1)  The penalty for not buying insurance is not a tax.  Congress called it a “penalty” and claimed authority to act only under the Commerce Clause.  To argue otherwise now ignores what Congress actually did.

2)  A penalty for inaction is not a tax of any kind known to the Constitution, when judged historically.

Finally, for today, there is Cuccinelli’s principled defense of the First Amendment in the case of Snyder v. Phelps. Here is the text of the press release that explains his refusal to join a case filed by the AGs of 48 other States:

Attorney General Ken Cuccinelli has decided not to join other states in an amicus brief on behalf of Albert Snyder in Snyder v. Phelps, which will soon be heard by the U.S. Supreme Court.  Mr. Snyder is the father of Matthew Snyder, a soldier killed in Iraq whose funeral was picketed by Fred Phelps and his followers at the infamous Westboro Baptist Church.

Here is our statement, given by Brian Gottstein, director of communication:

The attorney general’s office deplores the absolutely vile and despicable acts of Fred Phelps and his followers.  We also greatly sympathize with the Snyder family and all families who have experienced the hatefulness of these people.  The attorney general has always been a strong supporter of the military, both in his words and in his work as a Senator.  But the consequences of this case had to be looked at beyond what would happen just to Phelps and his followers.

This office has decided not to file a brief in Snyder v. Phelps, because the case could set a precedent that could severely curtail certain valid exercises of free speech.  If protestors – whether political, civil rights, pro-life, or environmental – said something that offended the object of the protest to the point where that person felt damaged, the protestors could be sued.  It then becomes a very subjective and difficult determination as to when the line is crossed from severely offensive speech to that which inflicts emotional distress.  Several First Amendment scholars agree.

Virginia already has a statute that we believe balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services.  That statute, 18.2-415(B), punishes as a class one misdemeanor (up to one year in jail and a fine of up to $2,500) someone who willfully disrupts a funeral or memorial service to the point of preventing or interfering with the orderly conduct of the event.

We do not think that regulation of speech through vague common law torts like intentional infliction of emotional distress strikes the proper balance between free speech and avoiding the unconscionable disruption of funerals.  We think our statute does.

So long as the protesters stay within the letter of the law, the Constitution protects their right to express their views.  In Virginia, if Phelps or others attempt this repugnant behavior, cross the line and violate the law, the attorney general’s office stands ready to provide any assistance to local prosecutors to vindicate the law.

A politician who stands on principle instead of bowing to popular outrage. How refreshing. How unusual.

Cuccinelli for President? Sounds good to me, but if you follow the first link in this post you will learn that Cuccinelli’s views on many issues would cause Democrats to unleash a latter-day anti-Goldwater scare campaign. Given the present mood of the country, however, Ken Cuccinelli could be just the right man for the times.