The National Law Journal - Judge Allows Challenge to Health Care Overhaul to Move Forward

by David Ingram, The National Law Journal

A federal judge in Virginia has declined to dismiss a challenge to President Barack Obama's health care overhaul, writing that each side should have an opportunity to make its case fully.

U.S. District Judge Henry Hudson of the Eastern District of Virginia issued the 32-page ruling Monday. His opinion denies a motion by U.S. Justice Department lawyers to toss the lawsuit, which was brought in March by Republican Virginia Attorney General Kenneth Cuccinelli II.

"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. He added that each side has "some authority" behind its position.

In a statement, Cuccinelli said he was pleased with the ruling. "The government cannot draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause," he said.

The Virginia case has attracted a substantial amount of amicus attention. Angela France of the Alexandria office of PCT Law Group is representing a coalition of supporters of the law, including the National Women's Law Center and the Center for American Progress. Mayer Brown partner Andrew Nicely authored a brief on behalf of a group of law professors supporting the law. Colby May, senior counsel at the American Center for Law and Justice, is representing Republican congressmen opposed to the law.

Democratic former solicitor general Walter Dellinger, head of the appellate practice at O'Melveny & Myers, noted in a conference call with reporters that the decision is procedural. "It's unfortunate, but it doesn't decide much at all," he said. He added that the individual mandate is in the "heartland" of the government's regulation of a $2.5 billion insurance market, and so falls within Congress' powers.

Cuccinelli's case is one of two federal legal challenges to the health care overhaul and its requirement that individuals buy insurance or face a penalty. A hearing on summary judgment is scheduled for Oct. 18.

The other, brought by a group of other state attorneys general, is pending in the Northern District of Florida.