RICHMOND — A federal judge said Monday that he expects to rule on Virginia’s legal challenge to the federal health care overhaul by the end of the year, but acknowledged that the case will likely end up before the Supreme Court.
Judge Henry E. Hudson heard arguments from Virginia Solicitor General E. Duncan Getchell Jr. and U.S. Deputy Assistant Attorney General Ian Gershengorn on the constitutionality of a new federal law requiring most Americans to purchase health insurance. The requirement is part of a package of health care reforms signed into law by President Obama in March.
Virginia maintains that the so-called “individual mandate” lies outside the limits of Congress’ authority to regulate interstate commerce, while the federal government has argued that the provision is part of a broader regulation of the health-insurance market.
Hudson commended both sides for a “very well-briefed case,” but said the issue was unlikely to be decided in his courtroom.
“This case is going to be [resolved] by much higher courts than this one, no matter how I rule,” he said.
Each side also argued over whether the fee that people would have to pay if they failed to buy insurance constituted a penalty or a tax.
The distinction is important because Congress has the power to levy and collect taxes and treating the fee as a tax would enhance the Justice Department’s argument that the federal government is acting within its authority in administering the insurance requirements.
Virginia’s Getchell argued that the penalty is not a tax since it is not intended to generate revenue; in theory, if Obama’s plan works, everyone would buy insurance and the penalty will raise no revenue, he said.
Virginia Attorney General Ken Cuccinelli, who filed the lawsuit immediately after Obama signed the bill in March, was present in the Richmond courtroom but did not participate in the arguments. After the hearing, Cuccinelli said the Justice Department was characterizing the penalty for those who fail to buy insurance as a tax because the federal government needs a “fallback argument” to defend the legislation.
“To do that, they have to argue that the penalty is a tax — exactly the opposite of what they said when they passed the law,” he said.
Virginia is asking Hudson to grant an injunction to stop the entire law if he finds that the individual mandate is unconstitutional.
