Federal judge allows Virginia health-care challenge to go forward, but will anything come of it?

By Michael J.W. Stickings

As you may have heard, a federal district judge yesterday ruled that the Commonwealth of Virginia's challenge to the new federal health-care law, the Patient Protection and Affordable Care Act, may go forward:

The administration had asked the judge, Henry E. Hudson of Federal District Court, to dismiss the challenge by Virginia's attorney general, Ken T. Cuccinelli II.

Mr. Cuccinelli had argued that Congress, in passing a measure that requires people to buy insurance or face a penalty, exceeded its limits under the Constitution's Commerce Clause and tax powers. Mr. Cuccinelli had also argued that the federal law violated a state law, the Virginia Health Care Freedom Act, which declares that residents cannot be forced to buy health insurance.

Mr. Cuccinelli is one of 21 state officials fighting the health care law, and this is the first ruling by a federal court on the important question of whether states have the standing to sue.

Monday's opinion does not address the merits of the health care law. It has no direct effect on the other state challenges, but it may influence the other judges. 

The challenge focuses specifically on the individual mandate, the requirement to buy insurance, but this ruling does not address the law itself and is effectively meaningless. As Jack Balkin notes, "[w]hat Judge Hudson has done, in short, is to put off the day when he will have to write a decision on the merits." Hudson's ruling indicates that he "clearly sympathizes with the state of Virginia" -- that is, I might add, with the Republican attorney general (and, presumably, Republican governor) of Virginia -- but it is really "only the beginning of many years of litigation over the constitutionality of the individual mandate in many different courts around the country." (For more on the technicalities of the case, see Lyle Denniston at SCOTUSblog.)

In other words, as Steve Benen puts it, the ruling is "a procedural victory" for the opponents of the law and "not a measure of success on the merits," even if the judge's legal/partisan inclinations are fairly clear. And so there's really no need to get "too excited about this." There's a long way to go, and, from what Steve says, it looks like the law will stand:

Most legal experts, including many conservatives, find the case to be pretty frivolous -- a former Bush/Cheney U.S. attorney said the litigation not only lacks merit, but should be "seen as a political exercise" -- and Cuccinelli has struggled to explain why this isn't a waste of taxpayer money.

Furthermore, the judge isn't exactly neutral:

Regrettably, Judge Hudson's objectivity is already in doubt. He's a Bush/Cheney appointee, and more importantly, the Huffington Post noted that the judge "has financial ties to both the attorney general who is challenging the law and to a powerhouse conservative law firm whose clients include prominent Republican officials and critics of reform."

Surprise, surprise.

Steve goes on to note, rightly, that the individual mandate is actually a Republican idea that once had a good deal of support from Republican senators -- not back in the '90s but just a year ago.

Regardless, and hypocrisy notwithstanding, Republicans will keep pushing these mostly frivolous and utterly partisan challenges -- and of course the concern going forward is that the Supreme Court is still 4-4-1, with Kennedy the unreliable swing vote.

I suspect the law will ultimately stand, and, as a political issue, it looks to me like a loser for Republicans. As the repellent ugliness of Congressional partisanship and legislative sausage-making recedes further and further into history, and as the American people come to see more and more that the fearmongering of Republicans was unfounded, that the Republic still stands and that they themselves are still free, that hordes of fascists and socialists didn't topple democracy and destroy the Constitution, and that, actually, health-care reform brought a lot of good to a system that was (and that in many ways remains) deeply unfair and unjust, costly and cruel, the law will become more popular -- and we are already seeing this.

Republicans -- or, rather, the few sensible ones among them -- know that repeal isn't really a viable option, at least not if they seek electoral success. (Do Republicans really want to face the voters, and to go down in history, having overturned a law that extended health care to tens of millions and that blocked the insurance industry from denying coverage for pre-existing conditions?) As the White House explained, "[h]aving failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government." And this seems to be what Republicans want -- judges to do their work for them, to throw out a law that they know is far more popular than their propaganda would suggest, whereupon they can avoid a major political hit by pointing out that they had nothing to do with it. But of course they would have had everything to do with it. Judges won't be ruling in a vacuum, after all, they'll be ruling on challenges brought by Republicans, as in Virginia.

Republicans, whipping up blood-curdling public fury with their lies, like the ridiculous claim that there would be "death panels," drew their battle lines early on. In Congress, they were unanimously against reform, even this modest reform package that for the most part they themselves had promoted back in the '90s as an alternative to Hillarycare and that a Republican governor, Mitt Romney, had implemented in Massachusetts. They required Democrats to fight their way through all sorts of legislative hoops, denying clear majority rule. And once the bill passed, they continued to fight, pledging to repeal it if they took back Congress. But they know better, don't they? Or some of them do. They know that it's a losing issue for them, which is why they fought so hard against passage in the first place. Their electoral success, on this issue as on others, depends on public ignorance, but the public can't be kept in the dark forever.

And so these challenges will go forward, in Virginia and elsewhere, but the law will only become more and more a part of the lives of Americans, like Social Security and civil rights. You never know how SCOTUS will rule, of course, and there's a chance part of the law, if certainly not all of it, could be struck down, but I tend to doubt it. Having lost, Republicans are just flailing about, mired in the stink of their own political and ideological extremism, desperate for validation. One judge may have given them what they wanted, but they won't find any lasting success fighting health-care reform.