Va. begins courtroom assault on federal health-care overhaul

"If I think something violates the U.S. Constitution and I sit on my hands, then I am abandoning my oath of office," Cuccinelli said at a news conference after the hearing.

As a first hurdle, Virginia must convince the judge that the state has standing to sue. Acting on behalf of the Obama administration, Deputy Attorney General Ian Heath Gershengorn argued that a state suit is not appropriate because the provision of the law that Cuccinelli has challenged -- the requirement that people buy insurance or pay a fine -- affects individuals. At least 15 other suits have been filed by individuals or groups challenging the same provision.

Getchell responded that Virginia's statute prohibiting the mandate means that the state has a sovereign interest to protect.

Assuming the judge considers the suit valid, he will weigh a more central question: whether there is reason to think that Congress exceeded its constitutional authority by commanding individuals to buy health insurance. At its core, the legal debate will turn on whether a person who has chosen not to buy insurance is engaged in economic activity that can be regulated by Congress as interstate commerce.

Getchell argued that a person who has chosen to go without insurance is not engaging in economic activity and cannot be forced into the insurance marketplace. "No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce," he said.

Gershengorn countered that an uninsured person will eventually require health care. Going without health insurance is not inactivity, he said. It's just choosing not to pay for health care, a decision that shifts a $43 billion-a-year burden from the uninsured to the insured.

"Everybody uses health services." he said. "And, more importantly, you cannot guarantee that you will opt out. You cannot guarantee you won't be hit by a bus."

Debate among scholars

There is considerable debate among legal scholars about how the courts will rule on that point. For decades after the New Deal, courts gave Congress virtually unlimited authority to regulate economic activity under the legislature's constitutional power over interstate commerce. But in recent years, the Supreme Court has twice placed limits on that power.

Gershengorn also said the power of Congress to tax citizens gives it the authority to levy a fine against those who choose not to buy insurance. Cuccinelli later said that argument undermined Obama's long-held position that the federal law imposes no new taxes on the middle class.

Hudson, a 2002 appointee of then-President George W. Bush, asked probing questions of both sides, but at times he appeared to express sympathy with Virginia's case.

"Give me an example. Give me an example," Hudson demanded of Gershengorn at one point, asking him to cite a time when individuals had been required by the federal government to buy a private product. "Where?"

Gershengorn responded that health care is unlike other products because everyone eventually consumes it. He said Congress was merely trying to regulate how it is paid for.

Hudson has said that if he denies the motion to dismiss the suit, Kenneth T. Cuccinelli II v. Kathleen Sebelius, he will hear a motion for summary judgment Oct. 18. Regardless of the outcome at the District Court level, the case will almost certainly be appealed to the U.S. Court of Appeals for the 4th Circuit and then to the Supreme Court.