U.S. District Judge Henry Hudson in Richmond, Virginia had struck down the centerpiece of the national health care plan: the mandatory requirement that all citizens get health care coverage. The lengthy 42-page opinion details how the law falls outside of interstate commerce jurisdiction — the concern that I previously voiced in a column.

Hudson ruled that the mandatory requirement “exceeds the constitutional boundaries of congressional power.” However, he left the other parts of the law intact.

Notably, two other courts in Detroit and Lynchburg, Va. have upheld the law.

This is an important victory for Virginia’s attorney general, Kenneth T. Cuccinelli II, who has a stand-alone challenge from the giant challenge filed in Florida. Twenty attorneys general and governors have filed a challenge in Pensacola, Florida. Cuccinelli’s challenge will now move in tandem with the other case, which will move roughly together toward the Supreme Court.

On a practical level, this could be a problem for the Administration. With roughly half of the states challenging the law, you already have a reluctance to enforce the law. This will add to that resistance. However, since the requirement will not kick in for a couple years, there is no need for an injunction.

Today’s case is Commonwealth of Virginia v. Sebelius, 10-cv- 00188, U.S. District Court, Eastern District of Virginia (Richmond).

Judge Hudson previously denied the federal government’s motion to dismiss the case, warning that the mandatory insurance provision “literally forges new ground and extends Commerce Clause powers beyond its current high-water mark.” While I believe that the Administration has strong cases supporting its position, I agree with that statement. It is difficult to see what would be left of federalism guarantees in the Constitution if Congress has this jurisdictional authority. It is certainly a matter upon which people of good faith can disagree. I strongly encouraged members of Congress to allow states to opt in — perhaps with a reward for such participation in terms of funding. That would have avoided this ruling and much of the constitutional controversy.

It is important to remember that this ruling has little to do with the merits of national care reform. This is about how to interpret the Constitution and the scope of congressional power.

Here is a copy of Judge Hudson’s opinion: Health Care Ruling

There has been a quesiton raised about that fact that Hudson is an investor in Campaign Solutions, a Republican consulting firm which has worked for candidates opposing health care reform, including Virginia Attorney General Ken Cuccinelli. If he is still an active investor, I would be frankly surprised. I believe such connections would be a serious mistake for any prosecutor or judge. While I certainly understand people raising the issue, there is no evidence that this opinion was motivated by anything other than Hudson’s well-known conservative view of the Constitution. The opinion is a thoughtful and comprehensive take on the issue. Many can disagree with it and the Administration clearly has solid arguments to make before the Court of Appeals. However, it appears motivated by the deep-seated philosophical convictions and cannot be dismissed as a political screed.

Jonathan Turley

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