More on Virginia Health Care Lawsuit
The Wall Street Journal’s editorial this morning does a good job of summing up the significance of yesterday’s ruling denying the motion to dismiss in the Virginia health care lawsuit. (Politico has a news story on the ruling here.) While the White House released a blog posting suggesting that the lawsuit was frivolous – judges should “ensure that our courts do not become forums for political debates” – Judge Hudson rightly noted that this case is novel in its sweeping scope, as the federal government has never penalized people for NOT buying a product. (Also worth noting: The White House’s blog posting did not attempt to defend the mandate’s constitutionality through the federal taxing power – indicating that the Administration is still attempting to “have it both ways” when it comes to saying that the individual mandate to purchase insurance is a tax.)
It’s also worth noting that the morning after the judge in Virginia rejected an attempt to dismiss the first challenge to the health care law’s constitutionality, the Senate will begin debating the Supreme Court nomination of Elena Kagan, who in an exchange with Sen. Coburn during her confirmation hearings pointedly (and repeatedly) declined to say that passing a law requiring individuals to eat three fruits and three vegetables a day would be unconstitutional. As Judge Hudson noted yesterday, the health care law “literally forges new ground and extends Commerce Clause powers beyond its current high watermark” – a major constitutional development with which Ms. Kagan, during her confirmation hearings, expressed no qualms.