By Rosalind S. Helderman
Washington Post Staff Writer
Tuesday, October 19, 2010; B1
RICHMOND - A federal judge said Monday that he will rule on Virginia's constitutional challenge to the federal health-care law by the end of the year, a key legal test for the sweeping legislation.
In a packed Richmond courtroom, U.S. District Court Judge Henry E. Hudson heard more than two hours of oral arguments from lawyers acting on behalf of Virginia Attorney General Ken Cuccinelli II (R) and the Obama administration.
Hudson told both sides he will have to determine whether Congress can regulate an individual's inactivity - a person's decision to go without health insurance - under its constitutional authority to regulate interstate commerce. The law requires all individuals to buy health insurance by 2014 or pay a fine.
Speaking for Virginia, state Solicitor General E. Duncan Getchell Jr. told Hudson that the provision is an "unprecedented, unlimited and unsupportable in any serious regime of delegated, enumerated powers.
"The Supreme Court has never allowed inactivity to be regulated as commerce," he said.
Ian H. Gershengorn, a deputy U.S. assistant attorney general, said that individuals inevitably consume health services when they sicken or are injured, affecting the health-care market even when they have no insurance.
"The appearance of inactivity is just an illusion," he said. "The decision to get or not get insurance and essentially gamble that other people will pay for you when you get sick is not inactivity. It is not passivity."
The suit is one of more than 15 across the country challenging the federal initiative. Virginia's suit is separate from a case jointly filed in Florida by 20 other states.
Hudson, who was appointed to the bench by President George W. Bush in 2002, told the lawyers that he would review the arguments and "mine deeply" the written briefs before ruling. But he made it clear that his opinion will be only one of many issued before the case is complete.
"As you well know, this is only one brief stop on the way to the United States Supreme Court," Hudson said.
Filed by Cuccinelli moments after Obama signed the measure into law in March, the Virginia lawsuit is moving quickly through the federal District Court known by lawyers as the "rocket docket."
The case in Florida is moving a bit more slowly, and a judge there will hear the case in December. To date, a Michigan-based federal judge is the only jurist to rule on the law's legal merits, finding it to be constitutional in response to a challenge from a Christian legal group.
"The Department of Justice will vigorously defend the health care reform statute in any litigation challenging it on constitutional or other grounds," said Tracy Schmaler, a spokeswoman for the U.S. Justice Department, in a statement. "We are confident that this statute is constitutional and that we will prevail."
If Hudson rules that the individual mandate is unconstitutional, Cuccinelli has asked for an injunction that would halt its implementation nationally while appeals in the case proceed.
In court Monday, the two sides clashed over whether Hudson must strike down the entire complex law if he were to rule that the individual mandate is unconstitutional.
They also argued whether the fine that will be imposed on those who choose to go without insurance is a tax or a penalty. Justice Department lawyers argue that the fine is a tax, which Congress can impose under its constitutional taxing authority.
The discussion led to the hearing's sharpest moment, as Hudson questioned whether the fine should now be considered a tax, though Democrats and President Obama argued it was not a tax when debating the measure.
"Was he trying to deceive the American people?" Hudson asked Obama's lawyer.
Gershengorn responded that he was not. But, regardless of the congressional debate, he said the penalty will act like a tax, paid annually when individuals file their tax returns to the IRS.
The hearing was largely an exercise in high-level legal reasoning. But it came with a significant dose of partisan politics. The consumer health group Families USA, which supports the law, put up signs on the street in front of the courthouse asserting that Cuccinelli would deny health care to vulnerable Virginians.
"The attorney general's actions are radical," said Ron Pollack, executive director of the group, noting the legal challenge would strike down the entire law, including provisions unrelated to the requirement that individuals buy insurance. "Clearly, in the process millions of American families would be hurt."
Cuccinelli, who has become the public face of the law's legal challenge, held a news conference after the hearing and appeared on four national television news programs.
"Virginia is attempting to put the federal government back inside the constitutional fence the Founding Fathers put in place to contain its powers," he said.