POLITICS MARCH 17, 2011
The day that President Obama’s Affordable Care Act was signed, March 23, 2010, was also the day that the first challenges to the law were filed in federal court. Back then, the notion that health care reform could be overturned seemed remote. For one thing, it would require the Supreme Court to abandon decades of precedent. But nearly as big an obstacle, it seemed, was that the filer of the first suit to move forward was Kenneth T. Cuccinelli II, the attorney general of Virginia, a politician whose seven-year stint in the state legislature had earned him the nicknames “Crazy Cuccinelli” and “Kook-inelli.” After becoming Virginia’s top lawyer in 2010, Cuccinelli altered the state seal to cover the exposed breast of the Roman goddess Virtus. He has also questioned whether Obama was born in the United States and suggested he might not register the youngest of his seven children for a Social Security number. (“A lot of people are considering that now, because it is being used to track you,” he told a supporter.) The Washington Post’s editorial board has twice used the word “embarrass” to describe his effect on the commonwealth.
At the outset, Cuccinelli’s health care lawsuit seemed like exactly the sort of intemperate move one would expect from an upstart Tea Party politician who is more concerned with public displays of disaffection than results. And health care reform was far from Cuccinelli’s only gripe. He has also sued the Environmental Protection Agency over its power to regulate greenhouse gases and investigated a former climate-change researcher at the University of Virginia (UVA) for fraud. Last March, he notified state-run universities that their non-discrimination policies could not extend to gay students.
One year on, however, Cuccinelli’s health care challenge no longer seems so far-fetched. Last December, Judge Henry Hudson of Virginia’s Eastern District Court sided with Cuccinelli and ruled that the individual mandate was unconstitutional. Seven weeks later, in Florida, a similar lawsuit filed by more than two dozen attorneys general and governors also successfully challenged the law. Now, even the most determined naysayers have been forced to acknowledge the case’s viability. And Ken Cuccinelli, once easily derided as a mere troublemaker, has become something of a hero to conservative opponents of health care reform.
Long before Cuccinelli became a politician, it was clear that he was drawn to procedure and order, to clear delineations of right and wrong. He served on his college’s judiciary committee, and, at George Mason School of Law in Arlington, he ran for honor board chairman on a platform of firm retribution for violators. Fellow board members recall that he took his duties seriously and didn’t hesitate to schedule board meetings on weekends. In 1994, Cuccinelli oversaw the investigation of a student accused of interfering with the publication of a law journal. The inquiry dragged on for months; eventually the student refused to attend his own hearings and was expelled. While several colleagues on the board describe his management of the matter as fair, years later, something about the investigation troubles them. Maybe, they say, had another personality type been in charge, the case could have been resolved without ending the student’s law career. “It was all pretty black and white to [Cuccinelli],” one board member told me. “He was uncomfortable in the gray.” (Cuccinelli disputes this characterization. “I bent over so far backwards to accommodate him,” he says of the student.)
During the 1990s, Cuccinelli was a familiar sight on Northern Virginia’s GOP scene. But, when he first ran for the state Senate in 2002, his candidacy seemed so unlikely that a number of Democrats voted for him (Virginia has open primaries), thinking he’d be easy to defeat. When Cuccinelli went on to win the primary, the Republican vacating the seat, Warren Barry, backed his opponent. “I don’t want to make a habit of endorsing Democrats,” Barry said at the time, “but, in this case, the GOP picked someone whose thinking is so ancient, he would be an embarrassment to Northern Virginia.” Cuccinelli won by about 2,000 votes. It wouldn’t be the first time his detractors had underestimated him.
The Virginia Senate is known more for genteel negotiation and backroom deal-making than grandstanding. But Cuccinelli wasn’t interested in playing this game. “Ken was just an uncompromising individual,” says one of his regular antagonists, former Republican legislator Gary Reese. In Cuccinelli’s second year, he introduced, among other bills, ambitious proposals to expand gun rights and restrict abortions (he called abortion clinics “chop shops”). One measure would have permitted concealed firearms in bars and restaurants as long as the carrier’s blood-alcohol level was less than 0.2 percent. Although Republicans held the majority, only one of these bills passed. Dave Albo, a moderate Republican state legislator, told me, “Ken and I have different views on what your job as a representative is. I think Dave Albo is not supposed to go to Richmond to do what Dave Albo wants to do, but to do what my constituents want me to do. Ken’s view is, ‘Here’s what I view is right, and my job is to convince my constituents that I’m leading them the right way.’”
I asked Cuccinelli if he had ever compromised in order to advance a policy incrementally. He mentioned a 2007 transportation bill that he had initially supported, to the ire of his conservative allies. But this turned out to be a less than ideal example. As Cuccinelli explained, Democratic Governor Tim Kaine made changes to the bill that he disagreed with, and so he wound up opposing it. “I argued vehemently within my caucus that that was unconstitutional, and that nobody who took their oaths seriously could vote for this bill any longer. And so I voted against it,” he said. (As it happened, the Virginia Supreme Court did later strike down the amended portion of the bill as unconstitutional.)
In Cuccinelli’s view, the problem with his time in the Senate was not his own obstinacy, but his colleagues’ lack of imagination. Shortly before he took up his Senate seat, Cuccinelli told me, he met with a former professor, who warned him, “You’ll be surprised by how extraordinarily ordinary everybody there is.” Cuccinelli added, “Which turns out to have been a very diplomatic way to put that.” He recounted an old UVA joke to illustrate how things work in Richmond: How many Cavaliers does it take to put in a light bulb? (The Cavalier is the UVA mascot.) The answer is four: one to change the light bulb and three to drink bourbon and reminisce about how great the old light bulb was. “You don’t put in a bill that’s going to make substantial change,” Cuccinelli said. “I recognize frequently when putting in bills that introduce concepts and major change that it takes a long time to turn the battleship that is Virginia public policy. And I’m willing to lose.”
I noticed that he seemed to be more outraged by the Republicans he had battled against than the Democrats, and I asked if he had greater respect for his antagonists across the aisle. “Oh that’s true,” he replied, explaining that his disagreements with Republicans arose because he saw them as betraying fundamental conservative principles. One of Cuccinelli’s legacies in the Virginia GOP was a sort of conservative purity test that sometimes bordered on a witch hunt. In April 2005, after a longtime moderate Republican state senator named Russ Potts ran for governor as an independent, Cuccinelli tried (unsuccessfully) to remove his name from the party rolls. A year later, at a local party convention, he attempted to purge the rolls of delegates whom he deemed insufficiently Republican. These episodes still simmer in the Virginia GOP. When I called one local Republican official shortly before Christmas, he refused to talk about Cuccinelli, saying, “I don’t want him on my mind during the holidays.”
Last October, Cuccinelli flew to Iowa to campaign for a like-minded candidate for attorney general named Brenna Findley. It was his first visit to the state, something that did not go unnoticed by the political press. Cuccinelli is widely expected to seek higher office, and his anti-health-care campaign has made him a national figure. At a Virginia Tea Party rally last October, Cuccinelli eclipsed the other conservative stalwarts, including Rick Santorum and George Allen.
In Iowa, I followed Cuccinelli’s SUV to a Tea Party rally near Dubuque. He stood before a roaring log fire in a woodpaneled hall and asked, “So, this is what you mean by the hot seat?” Cuccinelli, who is 42, looks like a down-home Jon Hamm. He is voluble and easygoing, with a weakness for corny jokes. In person, it’s hard to dislike him. (When we spoke by phone a few months later, he remembered that I had a beard and ribbed me for it. “My recollection is that you shave less than other people,” he said with a laugh. “It’s been a long time since I did the whole beard-and-mustache bit.”)
Speaking to the tea partiers, Cuccinelli gave his standard address on Obama administration excesses. He emphasized, as he often does, the uncanny links he sees between his suit and Patrick Henry’s “Give me liberty, or give me death!” speech. The lawsuit was filed in the Richmond courthouse, 17 blocks from the church where Henry gave that speech on the same date 235 years earlier. “An amazing historical circle,” he marveled.
Cuccinelli went on to argue that the individual mandate violates the Commerce Clause, which empowers Congress to regulate activities affecting interstate commerce. He contends, among other things, that declining to purchase health insurance is a form of inactivity and thus cannot be regulated. “If they can order you to buy health insurance,” he said, “they can order you to buy a Chevy Equinox. I own a Chevy Equinox. You don’t want to own a Chevy Equinox.”
That the vast majority of constitutional scholars disagree with this view—conservative law professor Charles Fried of Harvard says the Commerce Clause argument is “plainly wrong”—has not diminished its appeal to movement conservatives. And, given that the individual mandate has been considered by five district judges and been found constitutional by the three Democratic-nominated judges and unconstitutional by the two Republican appointees, it’s likely that the fate of health care reform won’t hinge on scholarly deliberations alone. That’s good news for Cuccinelli, who has proven to be an effective public advocate.
When the case began, Cuccinelli was assailed for not joining the larger effort by other conservative state attorneys general. Yet this turned out to be a shrewd move. As a private attorney, he had appeared before the Eastern District Court many times. He also knew Henry Hudson, the conservative judge who heard the case: In 1999, they served together on a juvenile justice commission. Because Cuccinelli acted independently, and got his verdict first, he is by far the best-known of the conservatives who brought such suits. The rigid, go-it-alone spirit that hindered his legislative ambitions is finally paying off.
Convinced of the righteousness of his cause, Cuccinelli can be counted on to press on relentlessly, regardless of the cost. When we spoke, I asked him about the people who would lose their health insurance if his lawsuit prevails. “It is of great human concern to me that, if and when we win this case, the benefits which they front-loaded are going to go away,” he said. But Cuccinelli insisted—as he so often does—that he was fighting to protect a firm principle. “There are people who just assign evil motives to everything that I do just because they don’t like me; they want to believe that I’m a bad person, and some of them get pretty motivated about that. And, to me, that’s a painful cost, in this instance, of protecting the Constitution.”
Joshua Hersh is a reporter for The Daily. This article originally ran in the April 7, 2011, issue of the magazine.