'Not about Health Care, About Liberty': Virginia Wins Round One in Court

In a Press Conference after the Courts Ruling was issued, Attorney General Kenneth Cuccinelli told reporters, "This case is not about health care, so much as it is about liberty". It appears that the Federal Court may very well agree with him. Virginia Governor Bob McDonnell weighed in with his own Press Release "The requirement that all Americans must purchase health insurance or face a penalty is not permitted under the Commerce Clause of the United States Constitution". Stay tuned. This significant Constitutional Case now proceeds to full hearing.

RICHMOND, VA. (Catholic Online) - In a very well written Memorandum Opinion United States District Court Judge Henry E. Hudson refused to grant the US Government's Motion to Dismiss Virginia's challenge to the Federal Health Care Law. The Law is referred to as "Patient Protection and Affordable Care Act". The provision being challenged, in the Courts own words " requires individuals to either obtain a minimum level of health insurance coverage or pay a penalty for failing to do so." The result is that the challenge to the constitutionality of the Federal Law will now be given a full hearing in October. The Current US Administration was dealt a major blow on Monday, August 2, 2010. Upon news of the dismissal of the Governments motion, the news reports quickly multiplied. In addition, the pundit class went into overdrive, nearly tripping over one another in the mad rush to either extol or excoriate the Judge and his ruling. We chose a different path. We certainly informed our readership of the Court's ruling. However, we decided to do what some have not done, take the time to read the 32 page opinion. The Court clarified its ruling within the very first paragraph, "Although this case is laden with public policy implications and has a distinctive political undercurrent, at this stage the sole issues before the Court are subject matter jurisdiction and the legal sufficiency of the complaint". I write this article without any clerical title. I write it as a lawyer of over thirty years, much of that time spent practicing constitutional law. The reason I clarify this is to head off the silliness of some who attempt to pigeonhole our coverage. There is a small group of folks who try to insinuate that we take a "partisan" position in our coverage of federalized Health care. The fact is that there are some issues arising out of this Federal legislation which are beyond dispute for faithful Catholics, such as the potential of federal funding being made available for the taking of innocent human life through procured abortion. It is clear that funding the killing of our youngest neighbors with Federal money as "health care" was and still is is the intent of many of those who support this Federal Law. They continue to press their effort.  We cannot and will not cease in our efforts to expose their plan and oppose their evil designs. Our Bishops have been unwavering. Absolutely every faithful Catholic, no matter what their political party or affiliation cannot compromise; abortion is not health care, period.

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In addition,there is room for important debate on other policy aspects of this new Federal Regulatory Scheme. One of those policy issues is whether such a federalized approach to the delivery of health care services violates the important social ordering principle of subsidiarity. However, what was considered by this Federal Court in this memorandum opinion was whether requiring a citizen to purchase a good or service - and denying their right NOT to engage in economic activity - is unconstitutional. That was the argument set forth by the Commonwealth of Virginia. In addition, the Commonwealth argued that the section which mandates such a purchase under threat of federal penalty violates both the Virginia Health Care Freedom Act and the Tenth Amendment to the US Constitution. The argument was made by Virginia Attorney General Kenneth Cuccinelli. The Federal Government argued that this mandate and the penalty associated with it is defensible by their analysis of the Commerce Clause. An analysis which, by the way, the Court seemed suspect of. Then, they argued that the section in dispute was a valid exercise of the Federal Governments authority to tax under the General Welfare Clause of the US Constitution. Finally they argued that the Attorney General of Virginia lacked what the law calls "standing" the authority to bring the underlying law suit. The Federal Government filed the Motion to Dismiss which was the underlying procedural matter upon which the Court ruled and issued this opinion.  The Court refused to grant the Federal Governments Motion to Dismiss. The bulk of the well written judicial opinion then analyzed the legal arguments which will now be considered in the full hearing on the merits in October. It appears to this constitutional lawyer that the Court has signaled its leaning, but that will have to wait until October. Procedurally, this memorandum opinion simply overruled the Federal Government's motion to dismiss, thereby allowing the case to proceed. However, the quality of the 32 pages of legal analysis set forth by this Federal Court Judge must be causing some nervousness among the lawyers who are defending this provision in the Federal Health Care Law. The other important matter is that there is no severability provision in this Regulation. If this mandate is found to be unconstitutional, the Act is unconstitutional. In a Press Conference after the Courts Ruling was issued, Attorney General Kenneth Cuccinelli told reporters ""This case is not about health care, so much as it is about liberty". It appears that the Federal Court may very well agree with him.  Virginia Governor Bob McDonnell weighed in with these words in his own Press Release, "The requirement that all Americans must purchase health insurance or face a penalty is not permitted under the Commerce Clause of the United States Constitution". Stay tuned.

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