Dream a Little Dream

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

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.

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.

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.

Conservatives see Hudson’s ruling as anything but an isolated victory, however. It’s a symbolic triumph that heralds the beginning of the end of decades of government overreach. Cuccinelli’s constitutional worldview was always more about hopes and dreams than reality, and his original filing regarding the health reform law cited Justice Chase, writing in 1798, for the proposition that an act of legislation “contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.” The suit was styled as both a court pleading and a Tea Party manifesto about an overreaching federal government. So while liberals may be willing to write off Hudson as they once wrote off Cuccinelli, conservatives are doing neither. Former Sen. and Gov. George Allen today complimented Hudson on “his sound, Constitutionally-based decision” and offered his thanks to Cuccinelli “for defending liberty against federal usurpation and dictates.” Conservatives dismiss the two suits that went the other way, in the hands of the Clinton appointees, as inconsequential.

My guess is that both sides will keep playing this game. The next major court decision due to come down is in Florida, in a suit brought by 19 other state attorneys general. It will also be hailed or scorned by each side, depending upon the outcome as well as who appointed the judge and that judge’s extracurricular political activities. This will continue all the way up through the appeals process, until it slowly laps up to Justice Anthony Kennedy’s toenails, then his ankles, and then his chin. This is not really a constitutional debate; it’s about policy preferences, and it will be resolved someday in Kennedy’s prefrontal cortex. Hudson said as much today:The outcome of this case has significant public policy implications. And the final word will undoubtedly reside with a higher court,” he wrote.

Hudson was also at pains to say, “This case does not turn on the wisdom of Congress.” He was focused, he said, only on the constitutionality of the law. It’s usually a good bet that judges focused simply on the constitutionality of a law don’t have to say that is all they are doing. In any case, Hudson objected to a vision of the health care law as an overreach of federal power and an encroachment on individual choice.”The unchecked expansion of congressional power to the limits suggested by the [mandate] would invite unbridled exercise of federal police powers,” he wrote. Also: “At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it’s about an individual’s right to choose to participate.” If the individual mandate falls under the administration’s power to regulate interstate commerce, then “the same reasoning could apply to transportation, housing, or nutritional decisions.”

Both Cuccinelli and Eric Cantor, poised to be the next House majority leader, are trying to fast-track this case out of the U.S. Court of Appeals for the 4th Circuit and straight to the Supreme Court. That’s because they believe that from now on, all the judges who will look at this case along the way are not much more than constitutional window treatments. Never mind that Hudson has already ruled that there is no urgency in halting the mandate, since it doesn’t go into effect until 2013. For the right, this remains an urgent battle.

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