If you're new here, you may want to subscribe to my free Email alerts. Thanks for visiting!

HOW WILL DISTRICT COURT JUDGE HENRY HUDSON RULE ON FED MOTION TO DISMISS?

by Debra Mullins

Virginia Attorney General's image from his campaign website where Cuccinelli says the "Founders would cheer Virginia's anti-Obamacare bill"

(Jun. 6, 2010) — The first oral arguments in the Virginia health care lawsuit have been scheduled for July 1, 2010. During a pre-trial conference held on June 3, U.S. District Court Judge Henry E. Hudson, for the Eastern District of Virginia, decided he will hear initial arguments on the Motion to Dismiss filed on behalf of the Department of Health and Human Services Secretary Kathleen Sebelius by the Department of Justice. Each side will have one hour in which to present its argument.

In March, the VA General Assembly passed the Virginia Health Care Freedom Act (VHACFA) which exempts VA residents from the Patient Protection and Affordable Care Act’s (PPACA) federal mandate to purchase individual health insurance beginning in 2014, or else face tax penalties. Virginia is the first state to pass such a law. Idaho and Utah have since passed similar laws, and other states such as Arizona, Florida, and Missouri will place initiatives before voters to amend their respective state constitutions.

As previously reported at The Post and Email, VA Attorney General Ken Cuccinelli filed a lawsuit within hours of the signing of the PPACA by Mr. Obama on March 23. The complaint asserts the federal mandate to purchase individual health care insurance or else face tax penalties violates the VHCFA.

The federal government’s Motion to Dismiss contends the Commonwealth of Virginia law lacks standing: “A state cannot, however, manufacture its own standing to challenge a federal law by the simple expedient of passing a statute purporting to nullify it.” The federal government also asserts it is well within the powers of Congress to regulate and mandate the purchase of health insurance as interstate commerce under the Commerce Clause and that the Commonwealth of Virginia cannot sue the government on behalf of individuals who have yet to be harmed by the mandate.

The entire Motion to Dismiss can found here.

If the Virginia law survives the jurisdictional arguments on July 1, Virginia AG Cuccinelli will file for a motion for Summary of Judgment. Judge Hudson is tentatively scheduled to hear oral arguments on the motion on October 18, 2010.

The two sides agreed on one other issue: They are unlikely to settle this suit, on which the legacies of a president and an attorney general ride. “I don’t think I need to ask that question,” Hudson said of the notion.

Regardless of how Judge Hudson rules on July 1, the losing party is prepared to file an appeal with the Fourth Circuit U.S. Court of Appeals. The case in all likelihood will eventually be taken under consideration by the U.S. Supreme Court.

“These issues I don’t think are resolvable,” Judge Hudson told lawyers during the pre-trial hearing on Thursday. Judge Hudson was appointed to the federal bench by President George W. Bush in 2002.

The Post & Email has extensively reported the latest developments on the numerous lawsuits filed thus far challenging the constitutionality of the PPACA. Previous reports can be found here, here, here, and here.

Join the Conversation

3 Comments

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

  1. What ever happened to “the consent of the governed” or “the People are the Sovereign”? Over 60% of the “People” didn’t want national health care but they shoved it down our throats anyway! Seems to me we are no longer represented by our Representative, and this is exactly what Madison stated in Federalist 47. When the legislative, executive, and judicial branches of government are in the same hands, you have just defined “Tyranny.”

    1. There is a little known case currently before the District Court in D.C. In Hall vs. Sebelius (was originally Hall vs. Leavitt), five individual Plaintiffs are suing the HHS and Centers For Medicare and Medicaid Services (CMS) on the premise it is unconstitutional to require retirees who receive Social Security benefits to enroll in Medicare when they turn 65 or else risk losing their SS.

      The case is nearing completion. The judge denied the government’s Motion to Dismiss and the attorneys representing the Plaintiffs are preparing their final brief due on June 14 at such time the Court will schedule final oral arguments.

      While this case is not challenging the PPACA per se, the argument is nearly identical. It is significant as it may establish a precedent at least in part, for the lawsuits filed since the PPACA was signed into law. The judge in the aforementioned case has also been assigned the AAPS lawsuit that was filed in March.

      http://thefundforpersonalliberty.org/
      http://www.thepostemail.com/2010/05/25/the-american-association-of-physicians-and-surgeons-files-health-care-lawsuit/