Ken Cuccinelli Talks About Challenging Obamacare and the EPA

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On today’s edition of Coffee and Markets, Brad Jackson and Ben Domenech are joined by Virginia Attorney General Ken Cuccinelli. We’ll get an update on his challenge to Obamacare, then talk about the overreach of the EPA, net neutrality and how the Obama administration is killing jobs, not creating them.


We’re brought to you as always by BigGovernment and Stephen Clouse and Associates. If you’d like to email us, you can do so at coffee[at] We hope you enjoy the show.

Related Links:

The EPA’s New Move
Virginia AG to sue FCC over ‘net neutrality’
Attorney General Cuccinelli’s Official Site
Ken Cuccinelli for Attorney General

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Jackson: On the show today Virginia Attorney General Ken Cuccinelli is here. We’ll get an update on his challenge to ObamaCare, talk about the overreach of the EPA, and how the Obama Administration is killing jobs, not creating them. I’m your host Brad Jackson and you’re listening to the July 5, 2011 edition of Coffee and Markets.

Attorney General, thank you so much for taking the time to do this today. We appreciate having you on the show.

Cuccinelli: Well, I’m glad to be with you all.

Jackson: Let’s start with a question about the ObamaCare challenge. Can you give us an update on where that stands?

Cuccinelli: Sure. Recently the Sixth Circuit entered the First Appellate Court ruling, although we had the first argument in the Fourth Circuit in Virginia. We are awaiting an order in our case, and there are two other Appellate Courts where they are awaiting orders as well. And we expect that by the end of the summer you’re going to start seeing appeals show up at the Supreme Court. And we, more or less, anticipate being one of those. So, that’s the stage we’re at. We’re in the, we’re waiting. You know, it’s after you’ve taken that exam and all you can do is wait.

Jackson: You’re waiting for the grades.

Cuccinelli: Just waiting for the grade.

Domenech: You know, in terms of the ruling that came down, was there anything about it that surprised you, or stuck out to you as being notable about it?

Cuccinelli: Well, it was kind of a one to one to one ruling. I mean, it was two Judges to keep the constitutionality of it, to keep the bill. But it was notable for the fact that each Judge wrote their own opinion and the narrowest opinion was really quite extraordinary. I mean, in multiple places Judge Sutton who wrote that opinion said, you know, this goes beyond any law the Supreme Court has decided in the past. And anything that Congress has done in the past. And it’s really not for an Appellate Court Judge to go beyond that, but the Supreme Court can do it. And there was multiple invitations in there to the Supreme Court to step in and set a clearer, from his perspective, clearer outer boundary. Very unusual.


I mean, a lot of judges have said, including the Fourth Circuit, the Judge has said from the bench, well, we all know this isn’t going to end here. You know, comments of that nature which themselves are pretty unusual. But to have it written into the opinion so blatantly was really interesting. So, it sort of emphasizes that all of these are initial rounds until we get to the Supreme Court.

Domenech: There’s so much pressure put on this from a political perspective that people want to see a decision, I think, a resolution sooner rather than later when it comes to the issue. In terms of the timing, I know that you’ve spoken to us before on sort of your expectations. You know, has anything in that regard changed or do you still think that this is going to be something that’s going to be looked on next year, earlier rather than later?

Cuccinelli: I do think this will be considered in the 2012 term, 2011-2012 term of the Supreme Court that starts on, in October of 2011 and ends in June of 2012. And I expect that the ruling will probably come out in June of 2012.

Jackson: That’s coincidental political timing.

Cuccinelli: Well, you know, we tried to speed it up because of the cost to Virginia and the great difficulty that the uncertainty introduces to our governance, and we know to the private sector as well, but the Supreme Court rejected the notion of speeding it up.

Jackson: Attorney General, let me ask this, the EPA is in the news a lot. They have been overstepping their bounds on a lot of cases. I live in Texas. I know we are challenging their reach. How do you see the EPA these days and what they’ve been up to?

Cuccinelli: Well, I certainly think your description is well founded. They have definitely been probably the most aggressive of all the Federal agencies across the board. I mean, it’s just a, we’ve never seen anything like it. It’s really unusual.

Domenech: In terms of your own steps when it comes to confronting the EPA and pushing back against it, you and Texas’s Greg Abbott have mounted some legal challenges. I wonder if you could frame for our listeners what those look like and what those entail?


Cuccinelli: Well, first of all they are a little bit frustrating because they are so slow. You know, when I was a private attorney I practiced in the Eastern District of Virginia which is the fastest Federal Court in the country. It’s not even close. It’s so much faster than anything else. And so to get into one of these agency appeals, oh, it’s a form of torture. It is so slow. To give you an idea we filed before the health care case. We filed against the EPA on February 16, 2010 and the first brief in the substance of the case wasn’t due until May 20, 2011.

Domenech: Wow. That’s incredible.

Cuccinelli: So, we filed the first brief. The briefing schedule stretches out for this entire year. The last brief isn’t due until December 14th. So, maybe they’ll hear oral argument this century, but you know, I’m not holding my breath. And that all would be fine if they didn’t let the EPA press ahead with their regulatory scheme in the absence of completing the litigation. But they do let them press ahead. And so they can do all their damage, they literally put people out of business, you know, with some of their schemes. And even if they are found to be inappropriate by the Court, illegal by the Court later on, they’ve already done their damage.

Domenech: There are all sorts of issues that come from the Greenhouse gas side of this where, you know, the regulatory agenda of the EPA and we’ve talked about this on our show in the past, has a serious impact on jobs and on growth.

Cuccinelli: Yes.

Domenech: I wonder if you could speak to that issue a little bit, because it seems like, you know, as long as there’s that sort of uncertain regulations out there where companies have to invest a huge amount in compliance, you know, that there’s got to be an effect in terms of Virginia’s growth situation.

Cuccinelli: Oh, there’s no question. And that frustration is rising to the level of sort of top line thinking of ordinary voters. And the reason I know that is here in Virginia we knocked out three incumbent Democrats. One in southwest Virginia, and this is the most poignant. He’d been there 28 years.


Domenech: Wow.

Cuccinelli: And the people in his district basically knocked him out on cap and trade and the EPA. Because they now understand, as I think Americans all across the country do, about the economic impact, the impact on the opportunities that will be available or not for their children that this regulatory scheme is going to have. I mean, this administration doesn’t care about the economic consequences. And in fact saying, to quote Lisa Jackson, the administrator of the EPA, she said “Economic consequences aren’t my job”. Well, you know, what they are at least something I need to keep in mind. My first job is to make sure they obey the law and they don’t even do that very much. So, we’re having a tremendous, we’re seeing a tremendous downside to what they’re doing.

And one important message for your listeners, the first people hurt by these massive regulatory schemes are the poor. And the people hurt the worst by these regulatory schemes are the poor, because they can least afford it. They can’t afford the, you know, the $1,000 increase in their energy bills that’s coming. They can’t afford the lost job opportunities that aren’t coming. They’ll just, it isn’t like they’ll go away. They’ll never be here in the first place. This is a jobs programs for China.

(Commercial Break)

Domenech: We talked last week to Senator Jim DeMint about the situation in South Carolina with the NRLB. You know, it really is incredible the steps that the Administration has taken which just seem to block again and again the things were, you know, American citizens want to work. They want to get back, you know, to work and they want to have the opportunities that are there so that they can avoid, get a paycheck instead of a Welfare check. But I think that, you know, again and again it seems like this Administration is getting in the way of that.

What are some of the other things that you’ve sort of learned after being on the job now for a chunk of time about some of those impacts, you know, beyond just the EPA and maybe some of the other things that are out there?


Cuccinelli: Well, you know, each of these are, you can look at them individually, but what I’ve begun to talk to people about is what this tells us about the Administration in total. And that is that, take Health Care. No respect for the Constitution. EPA, no respect for the law. Look at them jumping into Arizona on the immigration lawsuit over Arizona’s rather tough state assist to Federal Law Enforcement on immigration. Now, the Feds have a long time not cooperated with states on illegal immigration and that’s all they had to do there. It’s all they had to do. They don’t like it, they don’t cooperate. That wasn’t good enough. They had to go jump in like the 800 pound gorilla. It’s really the bully in the school yard to try and beat up Arizona. No respect for states.

And here coming is the regulation of the Internet, Net Neutrality. Of course when they call it “Net Neutrality” the one thing you know is it isn’t neutral. And that’s coming in the face of a court order telling them they don’t have the legal authority to regulate the Internet. So, now they’re not even respecting the court system and maybe that shouldn’t surprise anyone. Not this year but last year you’ll remember the President’s State of the Union where he basically lectured and demeaned the Supreme Court as they sat there in front of him.

Domenech: You know, explain for us a little bit the Net Neutrality issue. Obviously we’ve had guests in the past who have talked about it, but I’d really love to hear sort of your take on what’s going on there and why you’re planning to push back against the Federal Government on it.

Cuccinelli: What they’re doing is the Federal Government wants to decide how bandwidth is going to be allocated whenever there is a log jam. And once you give them the ability to be the filter, they’re going to decide who wins and who loses. And that involves, and what that also means is they’re essentially taking over for purposes of the traffic on the networks the property rights of the network owners. Now, these aren’t individual peoples. They are, you know, Verizon, they’re AT&T, but if you’re one of those companies why should you expand your network, why should you improve your network if you aren’t even going to be able to control it?


And so in their brilliant scheme to regulate the traffic they’re going to stop the roads from getting bigger. That’s what’s going to happen. And they’re also going to do it, of course, as always at the sacrifice of people who actually risked capital and so forth to build this Internet that we’ve got that has been probably the greatest tool of productivity increase in the history of mankind. I can’t think of another one that so across the board, it gave everyone else the access. You know, this is like roads for brains. And you just, you know, actual roads are great but there weren’t trails before roads and, you know, so it wasn’t some leap.

This was totally new. It has allowed our economy and our people to do things that were never even possible before. And we’ve seen some of the greatest economic expansion and a broad improvement brought via the Internet, because of the productivity increase. So now, because they’re so good at running everything else, the Government is going to step in and tell us how this should be run. I mean, what a disaster waiting to happen, this is.

So, we will either support those parties who were in the last case, where the court said that the Government doesn’t have the right to regulate the Internet, actually what they said specifically was that Congress hasn’t delegated to the FCC the authority to regulate the Internet. The FCC went back and said well, we don’t care. And they voted three to two to do it anyway. And I should say do it again. And so that, when that comes out in the Federal Register, guessing toward the end of the year, then you will see an attempt to enforce the old court order and you may see some attempts by some of us to bring our own cases separately to challenge the action of the FCC.

Jackson: Sir, you were talking earlier about the EPA effect on jobs. Do you think the Net Neutrality will also have a negative effect on jobs in Virginia and elsewhere?

Cuccinelli: Yes. In Northern Virginia and in other parts of Virginia, we have a significant tech sector, we have a significant communications sector. We also, you know, we have AOL in Virginia. We have significant content providers. They are all going to be affected one way or the other. Or put differently, they’re all going to have to scramble and fight in the pit of lobbying there on K Street, to avoid being affected, which is the same thing. I mean, political decisions are going to drive the outcomes now instead of efficient allocation of resources which is how you actually get productivity. Political decisions have never been known to produce productivity. And I focus on productivity because it is a proxy for higher wages and more jobs.


Jackson: Attorney General, thanks so much for taking the time to be on the show. We were honored to have you here.

Cuccinelli: Oh, it was my pleasure. Thank you very much.

(End of Podcast)


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