A federal judge in Virginia has refused to dismiss a lawsuit brought by the State of Virginia challenging the Obamacare health care mandate as beyond the scope of the Commerce Clause and as a violation of the 10th Amendment. The judge allowed the suit to proceed on both grounds.

The opinion is a significant victory, but keep in mind this only is the start of the case. The Judge ruled that the case was not defective as a matter of law, and did not rule on the merits. A motion to dismiss, in this context, only tests whether the plaintiff has stated a legally cognizable claim and sufficient facts as to suggest that the plaintiff is entitled to move forward.

In this case, I think the opinion is more significant than normally might be the case because the judge made extensive findings as to the law, and that law will not change unless some appeals court or the U.S. Supreme Court rules on a related issue in the interim. So the opinion does give us a guide as to how the judge views the law, and that view generally is favorable to Virginia.

The other thing that makes this opinion significant is that the facts also will not change much, unlike most cases which are fact intensive. Here, the facts are the legislation and legislative history. Those will not change. This is not a case where an evidentiary hearing should be needed to resolve disputed issues of fact.

Net-net, this opinion signals that the judge believes there is some validity to the constitutional challenges to the health care mandate. That is not a prediction of victory for Virginia, but it is a fair assessment of the opinion.

Throughout the opinion, the Court notes that the questions presented are novel and have not definitively been resolved in this context of a mandate and purported tax levied on non-economic activity. The case precedent, the Court held, do give support to Virginia’s position, at least enough so for the case to move forward.

This is a very encouraging sign for those of us who believe that the health care mandate is unconstitutional. Call it Taxing Your Mere Existence.

Update August 3 – A hearing on the merits is set for October 18.

Virginia v. Sebelius – Opinion Denying Motion to Dismiss http://d1.scribdassets.com/ScribdViewer.swf

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