Obamacare held unconstitutional by Virginia court – UPDATE: Opinion Highlights UPDATE 2: Virginia AG video

Today United States District Court Judge Henry Hudson from the Eastern District of Virginia issued his ruling in Virginia’s challenge to Obamacare.  He found that the provision requiring all to purchase insurance or pay a penalty (Section 1501) was unconstitutional.

UPDATE: Highlights of Judge Hudson’s opinion now up.

UPDATE 2: Below the fold we have added video of Virginia Attorney General Ken Cuccinelli who states the Obamacare legislation is critical to maintaining some semblance of personal freedom in America. It’s a good listen.

UPDATE: You can find the Virginia court’s 42 page opinion here. But, I will take some time providing quotes from the opinion which will explain both the court’s decision, and, the court’s rationale.

When discussing whether the individual mandate was a valid exercise of Congress’s power to regulate interstate commerce, the court stated, at page 21,

Despite the laudable goals of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within Constitutional bounds.  Salutatory goals and creative drafting have never been sufficient to offset the absence of enumerated powers. [emphasis supplied]

The court then held, at page 24,

Neither the Supreme Court nor any federal court has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.  In so doing, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers…

The court next considered whether the individual mandate would be permitted as a valid exercise of Congress’s power to tax.  And, here is where the opinion gets quite interesting, as it takes the government to task (politely, of course) for now claiming that the penalty to be paid for not having qualified coverage, really is a tax after all.  At page 33, the court holds,

In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, this court’s analysis begins with the unequivocal denials by the Executive and legislative branches that the [individual mandate] was a tax. [emphasis supplied]

The court then notes that all of the earlier versions of Obamacare specifically used the word “tax”, but, it was not until the final version passed on Christmas eve that the word “penalty’ was substituted.  Thus, if Congress originally intended that it be a tax, that intent was changed, and the final wording governs.

But, it is the court’s observation, at page 37 that struck me.

At its core, this dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health coverage – it’s about an individual’s right to choose not to participate. [emphasis supplied]

And, that pretty much sums it up for me, too.

UPDATE 2: Here’s Ken Cuccinelli’s comments shortly after the decision was handed down. “If we can be forced to purchase health insurance, there is no limit as to what the government can force you to purchase.”


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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. Lynn on December 13, 2010 at 8:55 am

    Hooray! Yes, I just read this, before I read RVO! Great job SOS to have this on the Blog already! I am giddy with JOY! This may be the easiest way to put a stake in its heart!

  2. TomTGRWolcott on December 13, 2010 at 2:27 pm

    First of all SOS, I thank you for taking the time to read not only the bill

    and make sense of it all, I thank you for the time and energy needed to do so,

    although I would think that this did keep your mind sharp as a whip?


    When this administration started saying that this was not a tax and then it was a tax, I think that

    at that moment in time, well at least I did, figure that this law, the way it was written and forcing people

    to participate in something that they may or may not want to, and using your analogy of Georgia Peaches … made me realize that this is a battle that will rage on.


    This is the first step, the war on ObamaCare is NOT over…but a good small step to

    what we would all want, eventual repeal of this incredible debacle

  3. Gary J on December 13, 2010 at 3:03 pm

    SOS You need a cape.Nothing like having someone right on top of legal things and making sense of them. My question is < I double dog dare you to answer> Why is it that Richard M. Blumenthal find the same things long ago? I thought he was a lawyer. Could it be, is it, please say it's not the fact the United States Constitution means nothing to someone "we" just elected to the United States Senate. I worry !

  4. sammy22 on December 13, 2010 at 4:38 pm

    Seems like legal minds agree to disagree. Even when the Supreme Court issues a ruling there are two sets of opinion.

  5. winnie888 on December 13, 2010 at 10:34 pm

    SOS, thanks for the good news.  The judge deserves a hearty pat on the back, as do you.  Let's "hope" that this is momentum to get Obamacare out of our lives and that the insurance industry has not been permanently destroyed and/or spooked by this whole nightmare.  Only time will tell…

  6. sammy22 on December 14, 2010 at 2:03 am

    There is no way to spook the insurance industry. Just signed up for another year: lower premium than last year for same coverage. OMG!

  7. Marilyn on December 14, 2010 at 2:53 am

    I will be forever grateful for the no nonsense language and understanding of this massive mess you have given us.  As I recall, congress can't  go back and claim it was passed under the tax clause which you thought would be a stronger argument.

    I had called, E-Mailed and written our Atty. General and  Governor asking for Ma. to join the law-suit, as we already have mandotary health care and it is bankrupting us.  I also asked about keeping your kids on your policy until age 26 and who would pay for that? I also asked if I had a 23 year old daughter on my insurance, and she had two kids are they covered as well ?  I am still waiting for an answer.

  8. winnie888 on December 14, 2010 at 3:13 am

    Good for you, sammy!  Our health insurance premiums doubled for this coming year even though we shredded anything we don't "need" from our plan.  OMG indeed.

  9. OkieJim on December 14, 2010 at 4:06 am

    It's going to take quite a few more decisions to kill this monstrosity. Thank you, SOS, for reducing this to a comprehensible level.

  10. Lynn on December 14, 2010 at 8:31 am

    SOS, I am still giddy with the ruling. However, there was one point mentioned by Attorney General Ken Cuccinelli that is scary. I do believe it is important to tell the govt. NO we will NOT buy something. However, Ken C. specifically said the govt. can't tell us to buy "a private product". If nothing else gets changed, if they don't allow insurance co. to sell across state lines and loosen the mandates to allow for freedom of choice for purchasing policies there will indeed be a possibility of losing all private insurance co. This means the white Knight the GOVT will save? us with their single-payer system. We have to attack Obamacare every way possible. Not just count on the Supreme Court and this issue.

  11. Marilyn on December 15, 2010 at 1:25 am

    Update;  In an article for the Washington Post AG. Holder and HHS Sebelius have now declared it, not an individual mandate, but and individual responsibility.  It's not the bill that is unconstitutional, it's the language.  We just have to tweek it.


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