At the head of the line of states planning to sue the federal government over health reform stands Virginia, where Attorney General Ken Cuccinelli announced Monday that he would file papers as soon as the Presidents "signs it into law." Cuccinelli objects to the mandate that individuals buy health insurance so people with coverage don't end up footing their medical bills for them. Cuccinelli thinks it's unconstitutional for Americans to be told they have to buy something, an argument he's been making for a while now. In January, he told a rally of the Virginia 10th Amendment Revolution:
"What we can do where we live is advocate again to bring back to life the 10th amendment, to bring back to life those boundaries in our Constitutional system that were supposed to be the critical checks in the checks and balances system. Without them, we lose, gradually, our liberty....
"If the federal government can order you to buy anything, with the penalty of going to jail, then you are not a free man or woman in the United States of America."
The Virginia 10th Amendment Revolution is a local manifestation of the national movement known as the tenthers. Tenthers, not all of whom like the name, share an intense devotion to the 10th Amendment of the Constitution, the one that reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The tenther argument against health care is a long one, extending all the way back to whether the government had the right to establish programs Social Security and Medicare. The New York Times spells out much of the counterargument today: that the Supreme Court has generally accorded the federal government broad power to regulate economic activity; that the mandate for buying insurance is framed as a tax, which Congress has the right to levy; and that the federal government pulls the reins on personal freedom when it suits a national purpose, like when it forced hotels and restaurants to serve African Americans with the Civil Rights Act of 1964.
As practiced by the out-there crowd, being a tenther may mean declaring yourself sovereign and immune from federal laws and taxes, issuing your own ID papers and calling your home an embassy.
As practiced in the halls of power, the tenther movement looks like Virginia's Cuccinelli -- and AGs from Utah, Pennsylvania, Alabama, North Dakota, South Dakota, Washington, Florida, Nebraska, South Carolina, Colorado, Idaho, Michigan and Texas -- planning to sue the federal government over health reform. Minnesota Gov. Tim Pawlenty's looking into a suit. Mississippi's Gov. Haley Barbour wants one.
The tenther movement also looks like Cuccinelli suggesting last year that he might not get a Social Security number for his new baby:
"We're gonna have our seventh child on Monday, if he's not born before. And, for the very concerns you state, we're actually considering – as I'm sure many of you here didn't get a Social Security number when you were born, they do it now – we're considering not doing that. And a lot of people are considering that now, because it is being used to track you."
As a candidate, Cuccinelli promised that he would decide for himself which of Virginia's laws pass muster. "I will not defend what I, in my judgment, deem to be an unconstitutional law," he said a debate in April. The AG's mission includes "defending the laws of the Commonwealth when they are challenged on constitutional grounds."
If you call the AG's office to ask about all this, you first get Cuccinelli's director of communication, Brian Gottstein. On Monday, Gottstein referred political questions about his boss to the AG's campaign, which didn't respond to a request for information. Gottstein is himself a veteran of the tenther and Tea Party circuit. The former Libertarian columnist, who joined Cuccinelli's staff in February, was still listed last week as the VP for communications for Tertium Quids, whose president appeared at 10th Amendment rally with Cuccinelli. Gottstein spoke at the Roanoke Independence Day Tea Party last year.
Gottstein wouldn't say whether he himself is or has been a member of the Tea Party. He says he no longer works for Tertium Quids and that the website likely hadn't been updated because he was the one who used to do the updating.
And did he ever. As a writer for the Tertium Quid blog, he attacked global warming as a myth and Virginia Gov. Bob McDonnell as perhaps not as big on small-government as he claimed. Now that Gottstein's job includes representing Cuccinelli when he takes the birther line on President Obama's birth certificate and the tenther line on health reform, Gottstein says he can't talk about his own politics anymore. "I don't bring my politics to work with me, and I don't want to highlight them for the media," he says. "It's a distraction to what I'm supposed to be doing in the AG's office....I'm plenty happy with what I've done before. I can't get into politics in my position."
With a boss like his, Gottstein hasn't got to bring his politics to work. Politics are written into the job, and it's the politics of the tenthers.