If there is anyone out there still naïve enough to think that the Virginia lawsuit challenging the constitutionality of ObamaCare is some sort of political stunt, I recommend this reality check from U.S. District Court Judge Henry E. Hudson:
Hudson … made it clear that his opinion will be only one of many issued before the case is complete. ‘As you well know, this is only one brief stop on the way to the United States Supreme Court.’
During the hearing over which Hudson presided yesterday, the Obama administration put forward what might be called the “passive aggressive” argument for the individual insurance mandate. Government lawyer Ian H. Gershengorn put it as follows:
The appearance of inactivity is just an illusion … 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.
Meanwhile, Virginia’s Solicitor General E. Duncan Getchell Jr. argued that the mandate is unconstitutional and that Hudson must strike down the entire law if he rules in Virginia’s favor (this is about PPACA’s lack of a severability clause). Gretchell’s main argument went thus:
[The mandate is] unprecedented, unlimited and unsupportable in any serious regime of delegated, enumerated powers … The Supreme Court has never allowed inactivity to be regulated as commerce.
The judge promised to rule on the case by the end of the year, and it won’t take long (by legal standards) to get to the Supreme Court. The federal District Court over which Hudson presides is the “rocket docket” from which many cases have been shot to the big guys in D.C.
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