Virginia Attorney General Ken Cuccinelli has been learning the hard way that prohibiting educational institutions from prohibiting discrimination against gays and lesbians is not a good way to make friends. He is also learning that it tends to lead to an unwanted increase in scrutiny from the public. Although Cuccinelli was not a name anyone not unusually dedicated to Virginia politics would know, that all changed after he told Virginia universities that they were not allowed to forbid discrimination based on sexual orientation.
As a result of this new-found notoriety, a blogger has turned up an audio clip in which Cuccinelli speaks about his possible “birther” beliefs:
Q What can we do about Obama and the birth certificate thing?
Cuccinelli: It will get tested in my view when someone… when he signs a law, and someone is convicted of violating it and one of their defenses will be it is not a law because someone qualified to be President didn’t sign it.
Q: Is that something you can do as Attorney General? Can you do that or something?
Cuccinelli: Well only if there is a conflict where we are suing the federal government for a law they’ve passed. So it’s possible.
Ouch. I bet today wasn’t a very fun day for the AG’s office.
For the record, no, I don’t actually think it’s even remotely likely that Cuccinelli intends to launch such a campaign challenging the validity of all post-Obama federal enactments. But clearly Cuccinelli has at least thought about the quest as an academic matter, so I’m allowed to do so as well.
And Cuccinelli’s right. He very much could institute a suit challenging President Obama’s qualifications for the presidency. And given his office, such a case would likely be taken a lot more seriously than anything instituted by lawyer-dentist Orly Taitz.
So assuming Cuccinelli did intend to argue in court that Obama is not the lawful president, where might he find such a possible conflict between Virginia and federal law to bring the case to court?
Well, conveniently, the Virginia state government recently enacted what is potentially the perfect vehicle for such a law suit: the Virginia health care nullification bill. (Of course, Cuccinelli would have to beat out the Florida Attorney General if he wanted to be first to challenge it in court.)
Nullification refers to the practice of states passing legislation that purports to contradict or nullify a federal enactment. Under the Supremacy Clause, the theory of nullification does not have much of a legal leg to stand on, though it remains as a fairly powerful form of symbolic protest by states against the federal government.
Most legislators know this, and do not seriously believe that a nullification law can do what it purports to. This is somewhat problematic in its own right — as a general rule, and ignoring my own personal opinions on the desirability of a federally enforced individual mandate, I strongly dislike the idea of states deliberately passing unconstitutional laws in order to make a political point.
Moreover, the last time Virginia engaged in a campaign of nullification was back in the 1950’s, when Virginia passed a series of laws resisting desegregation, using a number of different convoluted legislative strategies to try and avoid the force of federal law. These attempts were eventually struck down by federal courts.
Nevertheless, Virginia went ahead and became the first state to enact a bill that purports to negate any potential federal health care bill that would require citizens to purchase insurance. The bill
“[p]rovides a resident of the Commonwealth shall not be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services … The measure also states that no provision of Title 38.2 renders a resident liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage.”
If this bill were ever challenged in court, and the commerce clause challenges to it were swatted aside, Cuccinelli could always argue that the Virginia statute is lawful because the supposedly preempting Federal health care bill was not signed into law by a Constitutionally valid president.
So if Cuccinelli really wanted to go ahead and prove that Obama was some sort of Constitutional changeling, with his qualifications for the Presidency switched at birth, assuming a federal bill with a provision for individual mandates ever gets passed, he’ll have his chance.