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Judge to rule on Va.'s health-care suit by end of July

Rosalind Helderman

A federal judge said Thursday that he will decide whether to dismiss a lawsuit filed by Virginia challenging the constitutionality of the federal health-care law within 30 days, providing an initial legal test in the landmark suit.

District Court Judge Henry E. Hudson heard the nation's first oral arguments about the massive federal overhaul signed into law in March in a packed Richmond courtroom Thursday morning. Spectators spilled over into a room next door and protesters lined the street outside.

The case is one of at least 15 that have been filed across the country challenging the law's constitutionality. It is one of two filed by states against the federal government; a separate case filed by 20 attorneys general is pending in Florida.

Thursday's arguments revolved around whether Virginia Attorney General Ken Cuccinelli has standing to sue on behalf of Virginia over the provision of the law that requires individuals to purchase health insurance or pay a fine, and whether Congress has the constitutional power to enact that mandate.

Acting on Cuccinelli's behalf, Virginia Solicitor General Duncan Getchell told the judge that a new Virginia statute going into effect Thursday, that makes it illegal to require Virginians to purchase health insurance, means the state has a sovereign interest to protect in the matter. Speaking for the Obama administration, Deputy Attorney General Ian Heath Gershengorn countered that courts would be forced into the middle of policy disputes if states are able to exempt their citizens from federal laws by passing statutes invalidating them.

The two sides also clashed over whether Congress' constitutional authority to regulate interstate commerce gives it the power to enact the mandate. Getchell argued that it would be "unprecedented," "ahistorical" and "anti-historical" for the federal government to require an individual who has chosen not to buy insurance to purchase that private product.

"No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce," he said.

Gershengorn countered that an uninsured person will eventually require health care when they sicken or are injured, meaning they are engaged in economic activity that can be regulated. "Everybody uses health services. And, more importantly, you cannot guarantee that you will opt out. You cannot guarantee you won't be hit by a bus," he said. He said a person without insurance is "in the health-care market. You are buying health care, and you are not paying for it."

Hudson interrupted both attorneys often with probing questions but seemed to have particular skepticism about the federal government's arguments. "Give me an example, give me an example," Hudson demanded of Gershengorn at one point, asking him to cite a previous time when citizens have been required by the federal government to buy a private product. "Where?"

At a news conference after the hearing, Cuccinelli, who attended the hearing with his wife and two of his children but left the courtroom argument to Getchell, said he has learned not to read too much into a judge's courtroom demeanor.

Still, he said he thinks the suit has a "better than even" chance for success. He said his suit is intended to defend the United States Constitution. "We're not doing anything here but following what the Constitution proscribes and the founding fathers envision," he said.

Justice Department lawyers declined to comment after the hearing.

If Hudson allows the suit to proceed, he will hear arguments for summary judgment Oct. 18. Most experts think the Supreme Court will ultimately settle the case.

By Rosalind Helderman  |  July 1, 2010; 2:18 PM ET
Categories:  Barack Obama , Ken Cuccinelli , Rosalind Helderman  
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Here's betting Cucinelli suffers yet another reversal. He has staked his reputation of pursuing these ideologically-based lawsuits that are legally flimsy.
How long will Virginia have to endure his malfeasance?

Posted by: krickey7 | July 1, 2010 6:21 PM | Report abuse

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