Handing an important tactical victory to challengers of the new health-care law, a federal judge today refused to throw out one of the first lawsuits against it. And in doing so, he said the arguments against the law are worth further consideration.
The challenge was brought by the state of Virginia, which passed a law declaring that no state resident can be required to buy insurance. Though finding that the law "has a distinctive political undercurrent," Judge Henry Hudson nonetheless ruled today that Virginia has a legitimate interest in defending it. He rejected the Justice Department's argument that the state has no legal standing to challenge the health-care law and that any lawsuit is premature -- given that the federal requirement won't take effect until 2014.
Virginia claims the health-care law's requirement, that all Americans buy health insurance, violates the Constitution's commerce clause, which gives Congress power to regulate interstate commerce. The state argues that a decision NOT to buy something is not an economic activity -- it's the lack of it -- and is therefore beyond the reach of Congress. The federal government responds that no person can simply choose to avoid participating in the health care market, because everyone will eventually require medical care.
The Justice Department also says the federal law contains a penalty for failing to buy insurance, and Congress has broad taxing authority. The state contends, however, that the purpose of taxes is to raise money. If everyone buys health insurance, no penalties will be paid, and no revenue will be raised. So the state says it's not really a tax.
In today's ruling, the judge wrote that Virginia's attack on the constitutionality of the federal health care law has some merit. The law, he said, "extends Commerce Clause powers beyond its current high watermark."
"Neither the US Supreme Court nor any circuit court of appeals has squarely addressed this issue" of whether Congress has the power to regulate and tax a person's decision not to participate in interstate commerce, he said.
Each side has some good arguments, the judge concluded, finding that the lawsuit should stay alive so that the issues can be hashed out in a full-blown trial over the health-care law.