Ask, and Ye Shall Receive…

Last week, we posted this article, which questioned Attorney General Ken Cuccinelli’s statement on the legal standing of HB66. After calling on him to explain this perplexing opinion; that under the law as written, the Federal Government did in fact have the authority to ban the manufacture and sale of incandescent light bulbs, Brian Gottstein, the A.G.’s spokesman responded. His entire response is below in italics.

 Our response follows:

[FYI - The attorney general, as part of his job, has to review every bill before the General Assembly (except budget bills and a few others) to see if it comports with the Virginia and U.S. constitutions and current law. It's his job to tell legislators when their bills may have legal issues, and that's exactly what he did in this case.]

“While the attorney general does not support the federal light bulb ban as a matter of policy and hopes that Congress will repeal it, the primary job of the Office of the Attorney General is to make legal judgments on the law as it is, as opposed to how one might wish it to be. Based on the law as it currently stands, the federal light bulb ban is constitutional, and therefore, it would preempt HB66 under the Supremacy Clause of the United States Constitution.

“Under cases dating back 70 years, the Supreme Court has consistently held that the Commerce Clause, when coupled with the Necessary and Proper Clause, allows Congress to regulate the production of commodities that, in the aggregate, have substantial effects on interstate commerce. Whether or not one agrees that those cases were correctly decided, they are presently the law. Because there is no question that light bulbs are a commodity for which there is a national market, the federal light bulb ban falls squarely within Congress’ powers as recognized by the Supreme Court. 

“Recognizing that this is the current state of the law does not, in any way, undermine the commonwealth’s suit to overturn the Patient Protection and Affordable Care Act. Unlike prior attempts to regulate the manufacture or sale of commodities for which there was a national market, Congress did something truly unprecedented with the individual mandate. It sought, for the very first time, to force citizens into commerce for the sole purpose of then being able to impose regulations. That is very different from the light bulb ban.

“We have stressed from the beginning that the Commonwealth’s challenge to the individual mandate was modest and that it did not seek to overturn any prior decisions of the Supreme Court, including Gonzalez v. Raich. In fact, in the Commonwealth’s complaint in the health care suit, we quote Justice Scalia’s concurring opinion in Gonzalez v. Raich, a case finding that the federal government could regulate a locally grown product that was never sold across state lines.

Accordingly, anyone who says that recognizing the current state of the law as recognized by the Supreme Court undermines the health care suit is simply mistaken.”

– In other words, under current law — which in our system includes previous Supreme Court decisions — there’s not a lot that can be done. It would require a change in the law by Congress or more likely, a constitutional amendment.

The bottom line is that Ken Cuccinelli has not changed his position on federal overreach and continues to fight it on a daily basis, oftentimes in ways that the office can’t disclose for legal reasons. But in reviews of bills like this, he is required to give his best legal assessment of whether or not a bill comports with the law and can be defended in court if it’s challenged.”

With appreciation for your response, and apologies for truncation of your statement, Mr. Gottstein, your full statement still leaves us with the same unanswered question…

Where is the Constitutional authority for the federal government to outlaw lightbulbs?

The sheer absurdity of the subject (of HB66) having to be discussed at all should make anyone pause to question whether Federal over-reach can be stemmed at all. It’s not about light bulbs, and it’s not about an individual mandate. It’s not even about firearms, as in a recently passed Montana law that is constructed on the same basic grounds as HB66. It’s about what the States are commanded to cede next. Mr. Cuccinelli himself, championing States’ rights, introduced this 2009 bill, which passed that year and effectively nullified the Federal “Real ID” bill within Virginia borders. These examples serve to illustrate why the one sentence pulled from your statement was so confounding, as to warrant being singled out.

In fact the Real ID is the law today. Yet the Federal government has delayed implemetation of this law 4 times because so many states have taken similar steps to nullify Real ID. This shows that nullification and state action can work if states have the courage to stand up to the Federal government when they overstep their authority.

We understand that judges have issued rulings using combinations of the Supremacy, Commerce, and Necessary & Proper Clauses at various points, but that doesn’t change that there is no such enumerated power for many of these rulings. But when the Federal government is ignoring the enumerated powers of the Constitution, we simply cannot accept those decisions as settled law, especially considering what lies ahead for the Court to decide

You have said, “In other words, under current law — which in our system includes previous Supreme Court decisions — there’s not a lot that can be done. It would require a change in the law by Congress or more likely, a constitutional amendment.”

We know that’s not true. We think the federal ban on light bulbs is another blatantly unconstitutional act further assaulting the 9th and 10th Amendments, in a Country where the States are barely clinging to autonomy. We think it’s time that decision was revisited in the courts and by legislators who can use the power of nullification like the Commonwealth used for Real ID and the Health Care Freedom Act.

We think this bill (HB66) is a good way to continue our fight against federal overreach. We’d like to believe Ken Cuccinelli is the guy to take that fight up, so naturally, when we see a seemingly contradictory statement, we asked (and continue to ask) why?

Gregory Honeycutt

President, Roanoke Tea Party

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