Judge Rules, Virginia Moves Forward Against Individual Mandate

James Earle Fraser's statue The Contemplation of Justice, which sits on the west side of the United States Supreme Court building, on the north side of the main entrance stairs. Photo by UpstateNYer.

Federal District Court Judge Henry E. Hudson has ruled that Virginia’s suit against the federal government for imposing an individual mandate to purchase health insurance can go forward. Which is to say that the suit survived the motion to dismiss for failure to state a claim. A primary consideration therein being whether or not Virginia had standing to bring such a claim.The judge ruled that it did.

Which means that the judge has ruled that the case can go forward and the issues be heard and then decided on their merits. No small thing, sine qua non in fact, but largely a procedural hurdle in what most believe will be a long and arduous trek through the legal system, subject to myriad appeals culminating, ultimately, before the Supreme Court.

In deciding the standing issue, Judge Hudson, according to Professor Jack Balkin, made much of the “Virginia Health Care Freedom Act– which asserts that no Virgina citizen may be forced to purchase health care insurance; that this law conflicts with the federal Affordable Care Act, and therefore Virginia has standing to challenge the act under the 10th amendment.”

Virginia’s Act was passed subsequent to the federal law in question; other states challenging the individual mandate do not, at present, have such a law to rely on. As Professor Balkin points out, however, the Virginia Act being deemed sufficient to buttress standing in a States’ rights Tenth Amendment claim is interesting– to say the least. It begs the question.

Balkin:

Indeed, the logic of the opinion seems to suggest that if Virginia had objections to any other part of the federal tax laws, it could pass a Virgina Tax Freedom Act related to that provision, claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment. This new act would give it standing to challenge any other part of the Internal Revenue Code, and it would also get around the tax anti-injunction act. Moreover, under the logic of the opinion, every other state in the Union could also create its own tax freedom act, and each of them would also be entitled to begin a series of tax protest challenges to provisions of the Internal Revenue Code. This cannot be consistent with the purposes of the tax anti-injunction act.

If you have a minute, it would actually be well spent on reading Professor Balkins post. Even if you are not a lawyer, I think you’ll find his writing accessible– and rewarding. He frames the difficulties of the opinion well.

Having said that, in a recent post we recounted the NY Times recap of the government’s argument regarding “inactivity” and the Commerce Clause:

Ian H. Gershengorn, a deputy assistant United States attorney general, countered that the insurance requirement fitted well within the Supreme Court’s parameters for Congressional regulation of interstate commerce. A choice not to obtain coverage, he said, is not inactivity, as Virginia and the other state plaintiffs claim, but an active decision to pay for future medical care out of pocket.  Because many Americans cannot afford the cost of surgeries and hospitalization, their choice to go uninsured shifts the uncompensated cost of their care to hospitals, taxpayers and commercial policyholders.

The argument seems to have not persuaded Judge Hudson. Quoting from the opinion, Daily Finance writes:  “From a legal standpoint, the judge defined the issue as:

‘whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce [by choosing not to buy health insurance.]‘”

For those of you with more interest in the subject, I would suggest these two posts:

1) “Is it Unconstitutional to Mandate Health Insurance? ,” which was originally published here on HRW by Professor Mark Hall and then later cited by the New York Times, Washington Post, etc.

And

2) “The Original Individual Mandate, Circa 1792,” which was originally published here on HRW by Bradley Latino, a Seton Hall Law student, and then by The Health Care Blog and on Maggie Mahar’s Health Beat Blog.