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Federal judge says he'll rule on Virginia's health care challenge by Jan. 1

Rosalind Helderman

A federal judge for the Eastern District of Virginia said Monday that he would rule on the constitutionality of the federal health care law by the end of the year, a key legal test for the sweeping legislation.

In a packed Richmond courtroom, U.S. District Court Judge Henry E. Hudson heard more than two hours of oral arguments by lawyers acting on behalf of Virginia Attorney General Ken Cuccinelli II (R) and the Obama administration.

The suit is one of more than 15 that have been brought across the country challenging the measure and one of two brought by Republican attorneys general. Virginia's suit is separate from a case filed in Florida jointly by 20 other states.

Hudson, who was appointed to the bench by President George W. Bush in 2002, told the lawyers that he planned to review the arguments and "mine deeply" briefings in the case before ruling. But he made clear that he knows his opinion will be only one of many expressed before the momentous case is complete.

"As you well know, this is only one brief stop on the way to the United States Supreme Court," he said.

Speaking for Virginia, the state's Soliciter General E. Duncan Getchell Jr. told Hudson that Congress overstepped its constitutional authority by enacting a provision that requires individuals to purchase health insurance by 2014 or pay a fine.

Hudson told both sides repeatedly that he sees the case's core question as determining whether Congress can regulate an individual's inactivity--a person's decision to go without health insurance--under its constitutional authority to regulate interstate commerce.

Getchell said such a move would be "unprecedented, unlimited and unsupportable in any serious regime of delegated, enumerated powers."

"The Supreme Court has never allowed inactivity to be regulated as commerce," he said.

Deputy U.S. Assistant Attorney General Ian H. Gershengorn countered that individuals inevitably consume health services in their lives when they sicken or are injured, noting the costs of caring for people who show up for medical care and have no insurance costs the economy $43 billion a year.

"The appearance of inactivity is just an illusion," he said. "The decision to get or not get insurance and essentially gamble that other people will pay for you when you get sick is not inactivity. It is not passivity."

If Hudson rules that the law is unconstitutional, Cuccinelli has asked for an injunction that would halt its implementation while appeals in the case proceed.

By Rosalind Helderman  | October 18, 2010; 12:35 PM ET
Categories:  Barack Obama, Ken Cuccinelli, Rosalind Helderman  
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Comments

It doesn't matter which way the judge rules, all Ken Cuckoonelli wants to do is grandstand in front of the Supreme Court.

If his brain was as big as his ego we might have a legal scholar representing us in the Commonwealth.

Posted by: hodgensr | October 18, 2010 2:39 PM | Report abuse

Something not clear to me, can the individual mandate alone be struck down or does the whole law go if any part is found ultimately unconstitutional by the supreme court?

Posted by: rlucente | October 18, 2010 3:11 PM | Report abuse

Cuccinelli's (and other AG's) case questions whether the government can require one to buy insurance or pay a penalty.
Our commonwealth has done this for years:

"The Virginia Uninsured Motor Vehicle (UMV) fee allows a motor vehicle owner to register an uninsured motor vehicle. At the time of registration, the motor vehicle owner must certify whether the vehicle is insured or uninsured.
If the vehicle is uninsured, the motor vehicle owner is required to pay to DMV a $500 uninsured motor vehicle fee."

http://www.dmv.state.va.us/webdoc/citizen/vehicles/uninsured_fee.asp?pf=y

Posted by: JerryG1 | October 18, 2010 5:06 PM | Report abuse

Requiring to buy insurance is a more effective way to spread risk. Health care does not (!) follow the usual commerce rules: one does not voluntarily "shop" for an illness or an accident with serious injury, neither does one "shop" for a place to get back to health out of free will like buying a TV. In the same line of reasoning, forcing kids to go to school is unconstitutional and public schools should therefore be abandoned....

Posted by: RonGey | October 18, 2010 5:23 PM | Report abuse

Requiring to buy insurance is a more effective way to spread risk. Health care does not (!) follow the usual commerce rules: one does not voluntarily "shop" for an illness or an accident with serious injury, neither does one "shop" for a place to get back to health out of free will like buying a TV. In the same line of KK's reasoning, forcing kids to go to school would be unconstitutional and public schools should therefore be abandoned....

Posted by: RonGey | October 18, 2010 5:24 PM | Report abuse

Thank you, RonGey. Well said, nothing to add. Requiring health insurance is long overdue.

Posted by: botdob10 | October 18, 2010 6:01 PM | Report abuse

Wake up, Virginians! You have elected an ego maniac bound and determined to take us "back" to the 50s.

Posted by: burnedout | October 18, 2010 6:16 PM | Report abuse

Think of government as the ultimate Home Owner's Association (HOA) - the purpose of which is to supposedly enforce the very rules implemented and agreed to by those that join or are born into the HOA. We won't ever all agree to with government on every issue, but we agree to let the majority rule - problem is there is no majority anymore - we have splintered into multiple camps and have no real focus as a united group. Health insurance is a responsible way to be personally responsible for one's self - BUT the insurance industry, in it's infinite and profiteering wisdom, has also managed to splinter us into multiple camps (insurable, high risk, uninsurable)and as a result we have no way to fight back - enter Big Government: so like it or not, health insurance mandates should be a part of our society and the very purpose of insurance is to spread that risk equally - notice I said EQUALLY - that means we ALL must participate. Just go to the ER and sit and watch what happens for a few hours one weekend and you too will "get the messsage" - seems those that "have" don't give a damn if others can afford insurance or how much they can afford as long as they have theirs! This is America? Act like it is America.

Posted by: kokomo3 | October 20, 2010 11:01 AM | Report abuse

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