Activist Conservative Bush-Appointed Judge Lets Cooch’s Healthcare Lawsuit Go On


    (UPDATE: The White House weighs in. – promoted by Blue Virginia)

    How on earth does a judge find that Virginia’s Attorney General has standing to sue the federal government over a law passed by Congress?  If it’s an activist conservative Bush-appointed judge, it’s not hard at all.

    A federal judge Monday morning refused to dismiss a Virginia lawsuit challenging the constitutionality of the federal health-care law, handing the law’s foes their first victory in a courtroom battle likely to last years.

    U.S. District Court Judge Henry E. Hudson rejected arguments from Obama administration lawyers that Virginia has no standing to sue over the law and no chance of ultimately prevailing in its constitutional claim.

    But it’s ok if a  conservative judge legislates from the bench, right?

    UPDATE: State Senator and Attorney Chap Petersen weighs in:

    My take on this whole episode is that the purchasing mandate (as I understand) does not take effect until 2014.  There will be two elections for Congress BEFORE that time, and any future Congress has the ability  to amend or even repeal the purchase mandate.  Therefore, it is premature for any judge to rule on the constitutionality of the mandate, as the issue is not “ripe” for determination.

    Exactly, although I’d also add that this isn’t really a “mandate,” but a series of incentives and disincentives for people to purchase health insurance. In other words, if you don’t buy health insurance starting in 2014, you will NOT be going to jail or anything like that, but will have to pay a small “fine” or “tax” or whatever to compensate for your decision to go uninsured. How is that a “mandate,” exactly?   This entire lawsuit – and this entire line of “reasoning” – is utterly ridiculous.

    UPDATE #2: Cooch explains his “reasoning” after the flip.

    • KathyinBlacksburg

      (on the issue of standing) is only the half it it.  There are numerous vacancies in the lower courts, which the GOP are blocking.  It’s an unprecedented obstructionism and the Senate needs to act to end the charade.

      Here’s a Daily Kos article on the subject.

    • VaPolitico

      How exactly is this judge legislating from the bench?  All he’s saying is that VA has a right to sue and have the case heard.  Is that such a terrible thing?

      I hate it when right-wingers use the term “activist judge” and when they say “legislating from the bench”, and I hate it just as much when my fellow Dems do it.  

      This is procedural.  I’m sure that VA will lose the case eventually, but is it really then end of the world that a Federal Judge said that he can’t dismiss the lawsuit out-of-hand?

    • …up here in western New York who’ve asked me today if I’m happy to have moved out of Virginia and no longer have to deal with Cuccinelli. It’s a shame that I have to defend my home state because of the actions of one right winger who will do anything to win points with the Tea Party.

    • Elaine in Roanoke

      All of them, the two Democrats and the one Republican, think that Cuccinelli has made a laughing stock out of Virginia, Ultimately, his actions will negatively impact McDonnell’s so-called efforts to attract jobs to the Commonwealth.

    • Keith

      I believe it is helpful to read Judge Hudson’s ruling in its entirety.  Both the Washington Post and the VA Office of Attorney General have a link to the .pdf document.  At each point in making his decision, Judge Hudson summarized the opinions presented by both Virginia and the Federal Government in their respective filings on the Motion to Dismiss.  In each facet of his judgment denying the motion, he weighed the pros and cons of the arguments and decided that the Federal Government did not make their case that there was sufficient cause to stop the lawsuit from moving forward.  At this point, he was not asked nor did he make judgment on the overall merits of the lawsuit.  We should examine the judgment, point-by-point, and then make conclusions.

    • Keith

      We agree that the Virginia Health Care Freedom Act was lawfully enacted.  Despite the various opinions regarding why this law was passed, Judge Hudson concluded that  considerations other than “lawfully enacted” are “irrelevant” in judging whether or not the Virginia law is in conflict with Federal law.  Thus, to say that the Virginia law is “a mockery of what real law is supposed to be about” is merely your opinion and does not have any legal standing.

      Virginia states that it is not prosecuting this case in a  parens patriae capacity as a means of representing the citizens of the Commonwealth who may or may not want health insurance.  Rather, its argument is that the Commonwealth is acting as a sovereign power because one of its laws is in conflict with a Federal law and the Commonwealth is being forced to yield under the Supremacy Law of the U.S. Constitution.  Why the Commonwealth is challenging the supremacy of the Federal Government in this case – that the Individual Mandate feature of the Federal law is unconstitutional – has no specific bearing on the parens patriae or sovereignty argument.

      The “ripeness” argument is clear and does not support your position.  As was stated in the judgment, ripeness is considered by “the fitness of the issues for judicial decision” and “the hardship of withholding court decision”.  That the Individual Mandate does not come into force until 2014 does not eliminate the facts that 1) the laws of Virginia and the Federal Government are in conflict which is certainly an issue fit for judicial consideration and 2) a tremendous amount of work will be required by both individuals and the Commonwealth to prepare for 2014 which certainly can be considered a significant hardship.

      In my opinion, Judge Hudson made a reasoned judgment in denying the Motion to Dismiss.