Somewhat curiously, Judge Henry E. Hudson, for the Eastern District of Virginia, yesterday denied (pdf) the government’s motion to dismiss Virginia’s delusional, pro-nullification lawsuit against the centerpiece of Obama’s legislative agenda: the healthcare overhaul.
Note that the opinion declines to take seriously Cuccinelli’s attempt to frame the suit in Tenth Amendment terms. But it does accept the central premise of Cuccinelli’s argument: that the individual mandate is “unprecedented.”
The congressional enactment under review — the Minimum Essential Coverage Provision — literally forges new ground and extends Commerce Clause powers beyond its current high watermark.
This result only follows because the court also rejects the government’s best argument: that an economic decision that results in meaningful inactivity ought to be as regulable as one that results in activity.
[Not buying insurance] is a virtual state of repose — or idleness — the converse of activity. At best Section 1501 regulates future activity in ancitipation of need.
Cuccinelli’s distinction, accepted by the court, is strained: studied and deliberate repose is “activity,” because it still results from an action, one that, in the aggregate, has national implications. Just because you have to look farther back in the causal chain to find an act doesn’t mean that it’s not there.
That Hudson seems to be indulging these kind of arguments is itself a bad sign, and right-wing commentary characterizing the opinion as a serious blow is, accordingly, right-on. Cuccinelli’s case, especially considering the poor draftsmanship we saw in briefing, is the kind of thing that you expect to die an early death, and when it doesn’t, it means something’s gone horribly wrong. We’re suddenly defending this claim on the right’s chosen battlefield, rather than one with any tie to reality. Maybe we just drew the wrong judge.
Even if Judge Hudson erred (which I think he did), that doesn’t give us the right to question the judge’s quality, or qualifications, and Hot Air is wrong to expect the development of that narrative. When you think a judge made a mistake, the remedy is to take your appeal (or in this case wait for trial), not flip out and use it as an excuse to question the entire premise of judicial review. At the risk of generalizing, I expect our side understands that, while the right, transformed over the years by hyperbolic, apocalyptic culture war rhetoric into the frothing mass they are today, no longer does.
There’s one way to see for sure. Judge Bolton (D-AZ) received a “flood” of death threats from conservatives after she enjoined Arizona’s SB 1070. I wonder how many Judge Hudson will get. I’ll stake $10 on “zero,” or “zero to five.”