As not entirely unexpected, Judge Henry E. Hudson in Virginia has decided to allow the Virginia challenge to the Affordable Care act to proceed. Last week, Hudson's documented financial ties to Virginia AG Ken Cuccinelli and a conservative law firm that represents Republican officials were reported by Sam Stein.
In his ruling, Hudson rejected the Obama administration's argument that Virginia did not have standing to sue, giving short shrift to federal government supremacy, and brought up the Republican stalking horse, the commerce clause.
"While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate -- and tax -- a citizen's decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue," Hudson wrote in his 32-page opinion....
The ruling is only a procedural step, paving the way for a full hearing on the legal arguments of the issue in the same Richmond courtroom in October. However, if Hudson had dismissed the suit at this early stage, the ruling would have provided powerful ammunition for the law's supporters, who believe such suits are frivolous political exercises.
Stephanie Cutter, Assistant to the President for Special Projects, responded for the White House.
This morning, a federal district court in Virginia issued a procedural decision to allow a suit filed by Virginia’s Attorney General to move forward. The court did not, however, rule on the merits of Virginia Attorney General’s claim that the Affordable Care Act is unconstitutional. Judge Hudson’s opinion specifically states that the “Court’s mission at this stage is narrow” and that it “does not resolve contests surrounding . . . the facts [or] the merits of a claim.” The court’s procedural ruling states only that the complaint could not be dismissed at this preliminary stage.
Today’s decision merely said that the Virginia Attorney General has standing to challenge the lawsuit – which means that the court has jurisdiction to hear further arguments. The federal government believes this procedural ruling is in error and conflicts with long-standing and well-established legal precedents – the types of precedents that, in the words of Chief Justice Roberts, are designed to preserve the “judiciary’s proper role in our system of government” and to ensure that our courts do not become forums for political debates.
Now that this preliminary stage has ended, the government fully expects to prevail on the merits. The Affordable Care Act falls well within Congress’s power to regulate under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause. As President Reagan’s Solicitor General Charles Fried recently wrote, “the health care law’s enemies have no ally in the Constitution.”
Again, this is a preliminary and procedural ruling. Meanwhile, a federal judge in Florida is considering a motion to dismiss from the administration of the joint law suit filed by 20 other states.