Tuesday, August 3, 2010


The Commonwealth of Virginia won the first round this week in its challenge to PPACA’s individual mandate provision.

Federal Judge Henry Hudson refused to dismiss the suit by Virginia’s attorney-general that argued that the individual mandate went farther than the Commerce Clause of the US Constitution allows, while also violating the Commonwealth’s own Health Care Freedom Act (passed earlier this year in an attempt to derail health care reform).

The Virginia suit is the first state suit against PPACA provisions to have any kind of judicial ruling, but Judge Hudson’s decision merely allows the suit to proceed, while also having no direct impact on any of the other state suits. Nevertheless, Judge Hudson’s comments indicate considerable sympathy for Virginia’s arguments. “This notion that the government’s authority could include ‘the regulation of a person’s decision not to purchase a product’ was new to the federal courts,” the Judge wrote, and so the state’s protest was “legally viable” and could not be dismissed outright. Judge Hudson also noted that the PPACA mandate provision “literally forges new ground and extends Commerce Clause powers beyond its current high watermark,” and that: “unquestionably, this regulation radically changes the landscape of health insurance coverage in America.”

Opponents of the mandate seized on the judge’s opinion as undermining the new reform law, while reform advocates emphasized that this was no more than a procedural opinion.

As Judge Hudson commented: “While this court’s decision may set the initial judicial course of the case,” he wrote, “it will certainly not be the final word.”

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