Obama-Friendly Court for Virginia's Health Care Reform Challenge?

This is a rush transcript from "On the Record," May 10, 2011. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, "ON THE RECORD" GUEST HOST: All right, so here's a question for you tonight: Is the national health care law constitutional or not? Now, this is a question that's been batted around for much of the last year. More than 30 lawsuits have been filed across the nation that challenge President Obama's health care law. Three appeals court judges heard the arguments from two of these cases earlier today in Virginia. So this is front and center once again. Those judges were actually appointed, three of them, by Democratic presidents. They were chosen by a random drawing, but that's how it ended up. So what do they think and what do they make of this case?

Joining us is Virginia Attorney General Ken Cuccinelli. Sir, good to have you tonight. Welcome.

KEN CUCCINELLI, VIRGINIA ATTORNEY GENERAL: Good evening.

MACCALLUM: So how did it go?

CUCCINELLI: Good to be with you.

MACCALLUM: How did it go?

CUCCINELLI: Well, the fourth circuit is a hot bench. There was a -- they were firing away from the get-go and they were well prepared. Liberty University's case went before ours because two of the five cases decided thus far, both in Virginia, one in the western district, one in the eastern -- we won ours. They lost theirs. So we went second. And that meant we were the last of the three parties, federal government, Liberty University and the commonwealth of Virginia up.

And they spent the time on the commerce clause and the fact that Congress is trying to regulate doing nothing under the commerce clause, which has never been attempted before. And then they also attacked Virginia's standing to bring the suit in the first place because we have our own law in Virginia that says you can't order a citizen to buy health insurance, and that obviously conflicts with the federal law.

MACCALLUM: Right. So they're challenging...

CUCCINELLI: So we...

(CROSSTALK)

MACCALLUM: ... your right to bring the suit in the first place.

CUCCINELLI: They are.

MACCALLUM: You know, I'm curious, though -- you know, the headline here was that this is three judges who were appointed by Democratic presidents, one by President Clinton, two by President Obama. As I mentioned, this was a random selection of these judges and this is how it ended up.

CUCCINELLI: Right.

MACCALLUM: Was there anything in the questions that they were asking -- you know, so many people would look at that situation and say, Well, you know, they're all going to vote to uphold this health care law. Anything in their questioning today that led to you believe that they may go your way on this?

CUCCINELLI: There's no question that, for instance, Judge Motz, when they finished two hours of argument back and forth with three different lawyers, she was still saying to the federal government, Look, I don't see a meaningful distinction here between doing nothing, inactivity and activity. How do you confine this mandate to health care?

What I always tell people is this case is about liberty, not health care, because if they can order you to buy this product, they can order to you buy any product. And that's where Judge Motz's questions were going on that point.

MACCALLUM: Now, what about the...

CUCCINELLI: So yes, we did see signs of support.

MACCALLUM: All right. Well, that's encouraging to your side. What about, you know, in terms of looking at this as a penalty or a tax because, you know, initially, when all of this was put forth, basically, it said, if you don't buy health insurance for yourself, you will be penalized.

CUCCINELLI: Right.

MACCALLUM: You'll be fined. That language was sort of amended, and you know, sort of crafted a little bit to suggest that this would be seen as a tax, if you chose not to buy it. How is that element of this going?

CUCCINELLI: Well, it actually, in the legislative process, went the other way. They started with a tax and they changed the name to a penalty. But what matters under the law is how it operates. And if everybody obeys the law, obeys the dictat to buy the government-approved health insurance, not a penny is paid. It doesn't raise a single penny. So it's not a tax, it's only punishment if you don't obey the government. That's a penalty. Even under -- even if it was called a tax, it would still, as a matter of law, be a penalty.

The reason the federal government is arguing that is because they're worried they're going to lose under the commerce clause and they're hoping that this fine you have to pay will be deemed a tax and therefore save the whole piece of legislation under the spending and taxing provisions of the Constitution.

MACCALLUM: I got to go, but I'm struck by the fact that I've spoken to two attorneys general tonight who are, you know, at the forefront of two issues, immigration and health care, that are likely to have blockbuster cases this fall in the Supreme Court.

CUCCINELLI: That's right.

MACCALLUM: Do you expect that we will hear, you know, this issue, you know, in a very sensitive time period, you know, within the year window of a presidential election this fall?

CUCCINELLI: Yes, let me tell you the timeline. The timeline right now is we can expect a ruling sometime during the summer from the fourth circuit.

MACCALLUM: Yes.

CUCCINELLI: And we would expect it to be appealed to the Supreme Court in the fall. We expect them to take the case. And there will be several other circuits where the same thing will be coming.

MACCALLUM: Yes.

CUCCINELLI: So the Supreme Court will be getting these cases in the fall. I expect it'll be argued early in 2012. And if I had to guess a week, I would guess the last week of June 2012...

MACCALLUM: Fascinating.

CUCCINELLI: ... is when these orders would come down.

MACCALLUM: It's going to be an interesting session for the Supreme Court. Thank you so much, Attorney General Cuccinelli.

CUCCINELLI: Good to be with you.

MACCALLUM: Good to speak with you, as always.