Why the Cuccinelli health care win in Virginia matters more than you think.

The law, lawyers, and the court.
Dec. 13 2010 8:11 PM

Dream a Little Dream

Why the Cuccinelli health care win in Virginia matters more than you think.

Ken Cuccinelli (L) and Bob McDonnell. Click image to expand.
Ken Cuccinelli and Bob McDonnell

There were no surprises today when federal district judge Henry Hudson issued his 42-page ruling in Virginia's challenge to President Obama's major health reform initiative. Last August, Hudson denied an early effort to have the lawsuit dismissed. Then in October, he thumped Department of Justice lawyers arguing before him. In his decision today, striking down the health law's individual mandate—the provision requiring that by 2014 Americans must either purchase health insurance or face fines—Judge Hudson ruled exactly as he had telegraphed earlier. "No specifically constitutional authority exists to mandate the purchase of health insurance," he wrote. The Obama administration claimed that its power lay in the commerce clause, which allows the federal government to regulate activities that affect interstate commerce, as well as several other constitutional provisions. But Hudson reviewed the case law and deemed otherwise: "An individual's personal decision to purchase—or decline purchase—(of) health insurance from a private provider is beyond the historical reach" of the U.S. Constitution.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Hudson's ruling does not come in a vacuum, although in many quarters it will be received as if it had. Depending on whether you refer to health reform as "Obamacare" or the "Affordable Care Act," today's decision was either the first well-deserved "pockmark" on the legislation or a wing-nut outlier, penned by a reliably conservative George W. Bush appointee.

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To put today's ruling in perspective, there are almost two dozen health care challenges still pending. Supporters of health care reform point out that two other federal courts have ruled that the legislation is perfectly constitutional. (A federal judge in Virginia recently upheld the law, as did a federal judge in Michigan last October.) It hardly warrants repeating that both were Clinton appointees. Given the partisan judicial split that Hudson's ruling now produces, the most relevant observation about the constitutionality of health care reform today is that each side can continue to dismiss its opponents as having scored empty symbolic victories.

From their inception, the health reform suits have looked dramatically different to the left and the right. Liberals have talked about the suits as more aspirational than real. As today's New York Times points out, "only nine months ago prominent law professors were dismissing the constitutional claims as just north of frivolous." Some prominent court-watchers handicapped the likely vote at the high court at 8-1 to uphold the law. Liberals (including myself) tended to write off the Virginia challenge, brought by state Attorney General Ken Cuccinelli, as ideological and fanciful and poorly grounded in constitutional doctrine, text, or history. This was a Tea Party notion, not a lawsuit, we have argued; it will find no purchase at the Roberts court.

Moreover, it looks like the health care reform train has left the station, and nobody is going to strike down the law in its entirety anyhow. Hudson declined to strike down the entire law, opting instead to limit his ruling to eliminating the individual mandate. And so Ezra Klein observes that supporters of health reform can take heart in the narrow scope of legal consequences.

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