Breaking: Federal judge refuses to dismiss Virginia challenge to ObamaCare

posted at 11:35 am on August 2, 2010 by Ed Morrissey

The federal bench giveth … and the federal bench taketh away.  Federal judge Henry Hudson has refused to dismiss a challenge from Virginia on the constitutionality of the individual mandate in ObamaCare.  The case will have to move to trial, and could imperil the entire overhaul:

A judge on Monday refused to dismiss the state of Virginia’s challenge to President Barack Obama’s landmark healthcare law, a setback that will force his administration to mount a lengthy legal defense of the overhaul effort.

U.S. District Judge Henry Hudson refused to dismiss the state’s lawsuit which argues the law’s requirement that its residents have health insurance was unconstitutional, allowing the challenge to go forward.

Expect the Left to go after Judge Hudson.  George W. Bush appointed him to the federal bench in 2002, following a career in the state bench and also in the US Marshal Service as director during Bush 41′s administration.  The Right showed no reluctance to point out Susan Bolton’s appointment by Bill Clinton, and turnabout is not just fair play but de rigueur by now.

It matters little, anyway.  Virginia wasn’t the only state preparing a challenge to this law, nor was it even first to file a challenge.  This law will go to the Supreme Court from many directions, and there are more than enough constitutional grounds for judges to allow hearings on it, regardless of what Pete Stark thinks.

Besides, Hudson only refused to dismiss the lawsuit.  He hasn’t yet ruled on any of the arguments in the case, except to rule that Virginia has a case to argue that the federal government overreached.  What we know now is that at least one court will hear that case — and that’s the first step to checking the power of Washington.

Update: Hudson did note the unprecedented nature of the administration’s use of the Commerce Clause to justify ObamaCare’s mandate:

The guiding precedent [on the Commerce Clause] is informative but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

Again, this doesn’t mean Hudson’s ruling against it, but it means he seems pretty skeptical that these clauses can be stretched this far. (via The Corner)


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too bad the fools in NC won’t challenge it. I want to move.

bloggless on August 2, 2010 at 11:37 AM

Reel that mutha in

Alden Pyle on August 2, 2010 at 11:37 AM

That pesky Constitution…

mjbrooks3 on August 2, 2010 at 11:37 AM

George W. Bush appointed him to the federal bench in 2002

And the judge in the AZ case was appointed by Clinton.

I gather you guess the results of any case on the federal level based upon who appoints them. Whether it’s post hoc or if it’s party allegiance, I bet the accuracy rate would be north of 90%.

lorien1973 on August 2, 2010 at 11:38 AM

The case will have to move to trial, and could imperil the entire overhaul

Bummer./

Cindy Munford on August 2, 2010 at 11:38 AM

Racist Judge.

Appointed by Dick Cheney – well, as good as anyway.

/s

HondaV65 on August 2, 2010 at 11:39 AM

I hate these racist judges.

Bishop on August 2, 2010 at 11:39 AM

Judge Hudson clearly didn’t get the memo that the constitution is irrelevant and that the federal government can do whatever it wants. Someone needs to sit that boy down and give him a speakin’ to.

WashingtonsWake on August 2, 2010 at 11:41 AM

The right may have mentioned the bill Clinton angle, but it didn’t get the attention that the msm will play up on with a w appointee

cmsinaz on August 2, 2010 at 11:41 AM

Yes! Yes! Oh, yeah! Can ya feel that, buddy? Huh? Huh? Huh?

rollthedice on August 2, 2010 at 11:41 AM

Can’t Obama just issue an Executive Order that says no one can sue over this and any judge who disagrees is a poopyface?

Rocks on August 2, 2010 at 11:41 AM

The left is all for courts when it is in their favor to push lawsuits over legislation.

Lets see how they act when their own legislation is challenged in court.

These narratives write themselves.

Neo on August 2, 2010 at 11:42 AM

The mongrels are fighting back.

Lily on August 2, 2010 at 11:43 AM

Crr6 to chime-in with his extensive 1st year law student analysis any time now.

Bishop on August 2, 2010 at 11:44 AM

Want to bet that unlike the judge in the Arizona immigration case, this judge won’t be the subject of a flattering profile in the WaPo.

ChrisB on August 2, 2010 at 11:44 AM

I put nothing past the radicals in the White House. If they can’t win in court expect them to try something else.

I’m fully expecting a November “surprise”.

darwin on August 2, 2010 at 11:44 AM

Question. If these courts rule that the government “overreached” what does that mean? Will it nullify the law or will it make it easier to repeal it?

milwife88 on August 2, 2010 at 11:45 AM

Sweet!

gophergirl on August 2, 2010 at 11:45 AM

Why not an injunction?

faraway on August 2, 2010 at 11:45 AM

Federal judge Henry Hudson

Win for the ruling and win for the name.

Emily M. on August 2, 2010 at 11:45 AM

Question. If these courts rule that the government “overreached” what does that mean? Will it nullify the law or will it make it easier to repeal it?

milwife88 on August 2, 2010 at 11:45 AM

I don’t think a court ruling will mean anything to Obama. They’ll simply ignore it like they do everything else. Expect the executive branch to become the dictatorial branch.

darwin on August 2, 2010 at 11:47 AM

Count it.

So if we go by the same ideology the leftists used last week, this means that Obamacare is unconstitutional.

Skywise on August 2, 2010 at 11:47 AM

The mongrels are fighting back.

Lily on August 2, 2010 at 11:43 AM

Horray!!

heshtesh on August 2, 2010 at 11:47 AM

I don’t think a court ruling will mean anything to Obama. They’ll simply ignore it like they do everything else. Expect the executive branch to become the dictatorial branch.

darwin on August 2, 2010 at 11:47 AM

Judge Hudson better not attend the State of the Union, or Barry will give him a good finger-wagging.

ChrisB on August 2, 2010 at 11:48 AM

What’s the over/under on it taking less than 24 hours for AP or Reuters to report that Judge Hudson owns stock in a health insurance company?

rvastar on August 2, 2010 at 11:49 AM

Obama fought the law, and the law won.

faraway on August 2, 2010 at 11:49 AM

Count it.

So if we go by the same ideology the leftists used last week, this means that Obamacare is unconstitutional.

Skywise on August 2, 2010 at 11:47 AM

And then I think we should protest in the streets of Richmond.

ChrisB on August 2, 2010 at 11:50 AM

Judge Hudson better not attend the State of the Union, or Barry will give him a good finger-wagging.

ChrisB on August 2, 2010 at 11:48 AM

Well since Judge Hudson doesn’t “rule” over a country, he won’t get a poke in the chest.

upinak on August 2, 2010 at 11:51 AM

Gauntlet, more than just an obscure video game reference.

abobo on August 2, 2010 at 11:51 AM

What’s the over/under on it taking less than 24 hours for AP or Reuters to report that Judge Hudson owns stock in a health insurance company?

rvastar on August 2, 2010 at 11:49 AM

The MSM is already at his house going through his trash.

Johnnyreb on August 2, 2010 at 11:51 AM

Where’s the problem here?

Insurance companies funnel millions to politicians who pass laws requiring every American citizen to purchase a product sold by the insurance companies, earning them billions in revenue.

It’s called Hopenchange, people!

Now, sit down, shut up, and take it like a racist.

Bruce MacMahon on August 2, 2010 at 11:52 AM

darwin on August 2, 2010 at 11:47 AM

I hope that is not true. BTW: the one is on tv right now telling veterans that Obamacare will not change their benefits. He started off his speech by telling everyone it’s his birthday week. It’s all about the “O”. jackhole!

milwife88 on August 2, 2010 at 11:52 AM

I don’t know much about the appointment process for federal judges but Jon Kyle recommended Susan Bolton to Bill Clinton for appointment, not sure if that says anything or not.

tommer74 on August 2, 2010 at 11:52 AM

Waiting for super-smart law student crr6 to come in and put us some knowledge about how this means that the left is discredited and wrong about everything they do from here on out…

Good Lt on August 2, 2010 at 11:52 AM

Bravo, Judge Hudson!

Next MSM headline:

“Unexpectedly unexpected.”

GrannyDee on August 2, 2010 at 11:53 AM

Well since Judge Hudson doesn’t “rule” over a country, he won’t get a poke in the chest.

upinak on August 2, 2010 at 11:51 AM

Nor a bow.

ChrisB on August 2, 2010 at 11:53 AM

Virginia State Motto – “Sic Semper Tyrannis” (Thus Always to Tyrants)

Dr Evil on August 2, 2010 at 11:54 AM

Don’t fool yourselves. If the Court can find that personally grown and eaten wheat effects interstate commerce, they will certainly find that Big Bro can determine what kind of HCI you have to buy.

And the weak Repubs won’t do a GD thing about this when they return to power.

Aquateen Hungerforce on August 2, 2010 at 11:54 AM

How about that vote that is in Missouri tomorrow? Another nail in the coffin of the clown and his posse?

lukespapa on August 2, 2010 at 11:55 AM

Why not an injunction?

faraway on August 2, 2010 at 11:45 AM

+1

VibrioCocci on August 2, 2010 at 11:56 AM

Where’s crr6,….c’mon Julio…please bestoweth us on how this guy is an activist judge, how we are such dim bulbs….how Ken Cuccinelli is so “out there” for pursuing this…..
c’mon you punk, come get your crushing.

ted c on August 2, 2010 at 11:56 AM

Damn those courts and their constitutional crap.
– Pete Stark

angryed on August 2, 2010 at 11:57 AM

Memo circulating on Capitol from Health and Human Services suggesting methods to institute universal healthcare through regulations and executive branch policy without need for legislation.

BobMbx on August 2, 2010 at 11:57 AM

ACORN, SEIU, La Raza and Black Panthers probably organizing protest in front of the judge’s house as we speak.

The left has ZERO respect for the law unless it sides with them.

darwin on August 2, 2010 at 11:58 AM

Virginia wasn’t the only state preparing a challenge to this law, nor was it even first to file a challenge.

Ken Cuccinelli: Warrior for Liberty

Sic Semper Tyrannis

ted c on August 2, 2010 at 11:59 AM

Obama to staff during lunch today:

“Man, that 10th Amendment is a bitch. How do we get around it? Uh, do we have anymore arugula?”

BobMbx on August 2, 2010 at 11:59 AM

I don’t know much about the appointment process for federal judges but Jon Kyle recommended Susan Bolton to Bill Clinton for appointment, not sure if that says anything or not.

tommer74 on August 2, 2010 at 11:52 AM

It says that Republicans can be naive fools. Democrats ALWAYS appoint hard left judges and make no bones about it. Republicans appoint squishy moderates that over time turn into hard leftists.

angryed on August 2, 2010 at 12:00 PM

Thomas Jefferson’s Virgnia legacy survives.

A wise and frugal government, which shall leave men free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned – this is the sum of good government.
Thomas Jefferson

jake-the-goose on August 2, 2010 at 12:00 PM

So,a temporary door stop,

good!!

canopfor on August 2, 2010 at 12:00 PM

Crr6 to chime-in with his extensive 1st year law student analysis any time now.

Bishop on August 2, 2010 at 11:44 AM

Come on, Bishop – everyone here knows crr6 is a rising 2L.

Missy on August 2, 2010 at 12:00 PM

Hudson 2012!

mankai on August 2, 2010 at 12:01 PM

Hope.

petefrt on August 2, 2010 at 12:02 PM

But what does the our HotAir Legal Scholar Crr6 have to say?

Please hold all judgment until Crr6 graces us with his legal opinion.

portlandon on August 2, 2010 at 12:03 PM

United States District Court Eastern District of Virginia

http://www.vaed.uscourts.gov/
—————————–
=============================

The United States Attorney’s Office
Eastern District of Virginia

http://www.justice.gov/usao/vae/

canopfor on August 2, 2010 at 12:04 PM

But..but.. didn’t Pete Stark say that:

‘The Federal Government Can Do Most Anything in This Country’

Including Involuntary servitude to provide this “Benefit”?

I’m soooooooo confused.. can’t the government simply just compel people to provide services to others?

Chip on August 2, 2010 at 12:05 PM

Tom Petty – I Won’t Back Down

http://www.youtube.com/watch?v=nUTXb-ga1fo

canopfor on August 2, 2010 at 12:06 PM

HAPPY BITHDAY EIB!!!!!!!!!!!!

canopfor on August 2, 2010 at 12:07 PM

Crr6 to chime-in with his extensive 1st year law student analysis any time now.

Bishop on August 2, 2010 at 11:44 AM

I didn’t know watching Law, and Order, and scamming wikipedia for talking points was considered for 1 year of law school? Wow! Go figure! Learn something new every day! LOL

capejasmine on August 2, 2010 at 12:08 PM

The judge must possess a reptile side to his mongrel brain. He used it against the first black president. He must politically ‘die’, the racist.

Schadenfreude on August 2, 2010 at 12:08 PM

Ugh,Birthday,d*mmit!!

canopfor on August 2, 2010 at 12:08 PM

HAPPY BITHDAY EIB!!!!!!!!!!!!

canopfor on August 2, 2010 at 12:07 PM

Ditto!

cmsinaz on August 2, 2010 at 12:09 PM

YES on Proposition “C” tomorrow in Missouri— count on it!

missouriyankee on August 2, 2010 at 12:09 PM

But what does the our HotAir Legal Scholar Crr6 have to say?
Please hold all judgment until Crr6 graces us with his legal opinion.
portlandon on August 2, 2010 at 12:03 PM

Yes, we really do need some clarification from the neo-progressives on this.

Doesn’t the Interstate Commerce Clause or something trump all those pesky provisions in the bill of rights?

Chip on August 2, 2010 at 12:09 PM

What’s the Constitution got to do with it?

/s

barnone on August 2, 2010 at 12:09 PM

Judge Hudson clearly didn’t get the memo that the constitution is irrelevant and that the federal government can do whatever it wants. Someone needs to sit that boy down and give him a speakin’ to.

WashingtonsWake on August 2, 2010 at 11:41 AM

Like that former lecturer on Constitutional Law, Barack Hussein Obama Jr.?

Steve Z on August 2, 2010 at 12:11 PM

Can’t Obama just issue an Executive Order that says no one can sue over this and any judge who disagrees is a poopyface?

Rocks on August 2, 2010 at 11:41 AM

Oh, like the EO that prevents ObamaCare from funding abortions (not!) or the one that closed Gitmo by last January?

Steve Z on August 2, 2010 at 12:16 PM

Maybe I can speak for our esteemed “Legal Scholar” Crr6:

This is of course, is a ‘Public Good’ and because of it the public should have the “Right” to compel some to provide Labor or funds for this ‘Public Good’.

How’s that sound Crr6?

Chip on August 2, 2010 at 12:20 PM

Like that former lecturer on Constitutional Law, Barack Hussein Obama Jr.?

Steve Z on August 2, 2010 at 12:11 PM

Wasn’t this dude giving lectures as a professor of Constitutional law? Has anyone, anywhere, identified themselves as being schooled by this guy? At all?

I’d sure like to see the course syllabus for the classes he “taught”. Or are these also protected due to National Security Concerns?

BobMbx on August 2, 2010 at 12:24 PM

I hope that is not true. BTW: the one is on tv right now telling veterans that Obamacare will not change their benefits. He started off his speech by telling everyone it’s his birthday week. It’s all about the “O”. jackhole!

milwife88 on August 2, 2010 at 11:52 AM

49th anniversary of the second-worst day in Hawaii history (after December 7, 1941).

This coming Friday is also the Feast of the Transfiguration. Eat your hearts out, Elijah and Moses, the O is transfigured!!! /Farrakhan off

Steve Z on August 2, 2010 at 12:24 PM

What’s law got to do, got to do with it?
What’s law but sweet old fashion notion?

Mojave Mark on August 2, 2010 at 12:26 PM

I’d sure like to see the course syllabus for the classes he “taught”. Or are these also protected due to National Security Concerns?

BobMbx on August 2, 2010 at 12:24 PM

Some of his exam questions are out on the Internet. Most of them were about Affirmative Action and social acceptance of gay people, issues that must have been dear to his heart.

Not much about the right of the Federal Government to mandate health insurance.

Steve Z on August 2, 2010 at 12:28 PM

Mojave Mark on August 2, 2010 at 12:26 PM

Tina…nice :)

cmsinaz on August 2, 2010 at 12:30 PM

I’d sure like to see the course syllabus for the classes he “taught”. Or are these also protected due to National Security Concerns?

All the potential Republican presidential nominees should seal their college records now and only release them if Obama agrees to release all of his.

rickyricardo on August 2, 2010 at 12:31 PM

Crr6 to chime-in with his extensive 1st year law student analysis any time now.

Bishop on August 2, 2010 at 11:44 AM

I didn’t know watching Law, and Order, and scamming wikipedia for talking points was considered for 1 year of law school? Wow! Go figure! Learn something new every day! LOL

capejasmine on August 2, 2010 at 12:08 PM

Hey, Devry School of Law requires that you own all the episodes of Law and Order, not just watch the re-runs.
And you even have to have a GED to be considered for admission.
That takes some real work.

LincolntheHun on August 2, 2010 at 12:31 PM

Crr6 to chime-in with his extensive 1st year law student analysis any time now.

Bishop on August 2, 2010 at 11:44 AM

He’s delayed today. Mommy made peanut butter and jelly for him, but she had to go run an errand before cutting the crust from his Wonder Bread. He’s still at the kitchen table waiting for her to return to cut the crust off for him.

BuckeyeSam on August 2, 2010 at 12:33 PM

Too bad Doyle already knocked it down here in Wisconsin. Maybe JB can re-file when Walker gets in.

MadisonConservative on August 2, 2010 at 12:35 PM

This is an Activist Judge!

/crr6 and 7/8

Del Dolemonte on August 2, 2010 at 12:39 PM

de rigueur“, Ed? Very nice.

Allahpundit is truly rubbing off on you.

Jaibones on August 2, 2010 at 12:41 PM

BuckeyeSam on August 2, 2010 at 12:33 PM

Pretty nasty mockery there, Sam. I like that.

Jaibones on August 2, 2010 at 12:42 PM

too bad the fools in NC won’t challenge it. I want to move.

bloggless on August 2, 2010 at 11:37 AM

Good, in NC we want fighters, people willing to fight to regain their freedom. People like you get in the way.

right2bright on August 2, 2010 at 12:43 PM

too bad the fools in NC won’t challenge it. I want to move.

bloggless on August 2, 2010 at 11:37 AM

You could always get behind that Van Irion dude that’s getting a whole bunch of private citizens to pitch in…

MeatHeadinCA on August 2, 2010 at 12:43 PM

The inconvenient constitution.

csdeven on August 2, 2010 at 12:45 PM

YES!!! And my little state of Maine will also join the ranks after we get our next Conservative governor, Paul LePage, elected this November!!!

ErinF on August 2, 2010 at 12:51 PM

The case will have to move to trial, and could imperil the entire overhaul

Echoes of the Socialist portions of the New Deal?

humdinger on August 2, 2010 at 12:51 PM

The REAL “Inconvenient Truth”:

Federal powers are LIMITED by the Constitution!!!

It’s the American way…read it!!!

landlines on August 2, 2010 at 12:52 PM

speaking of AG Ken Cuccinelli….Foxnews is now reporting that VA police can and will investigate citizenship/immigration status during traffic stops and arrests.

pwnage. Right on DC’s doorstep.

ted c on August 2, 2010 at 12:57 PM

George W. Bush appointed him to the federal bench in 2002
And the judge in the AZ case was appointed by Clinton.

I gather you guess the results of any case on the federal level based upon who appoints them. Whether it’s post hoc or if it’s party allegiance, I bet the accuracy rate would be north of 90%.

Yeah, these judges are friggin useless. Why not use a monkey.

GTR640 on August 2, 2010 at 1:01 PM

speaking of AG Ken Cuccinelli….Foxnews is now reporting that VA police can and will investigate citizenship/immigration status during traffic stops and arrests.

pwnage. Right on DC’s doorstep.

ted c on August 2, 2010 at 12:57 PM

What are the odds that a particular motorcade would be on the way to, say a golf course? Could/would a birth certificate be produced?

Lily on August 2, 2010 at 1:18 PM

Why not an injunction?

faraway on August 2, 2010 at 11:45 AM

+1

VibrioCocci on August 2, 2010 at 11:56 AM

The unconstitutional provision they are attacking does not go into effect until 2014. IF this is still in court at that point, then they will look for relief from it.

Part of the democrat/progressive/marxist plan is to slowly squeeze all the life out of the people over a period of years.

Freddy on August 2, 2010 at 1:18 PM

George W. Bush appointed him to the federal bench in 2002
And the judge in the AZ case was appointed by Clinton.

The difference is that the Republican appointees tend to side with their common beliefs.

Look for Bolton to be nominated by Obama to one of the district court of appeals.

Freddy on August 2, 2010 at 1:21 PM

The guiding precedent [on the Commerce Clause] is informative but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

Memo to other states. FULL SPEED AHEAD! 56% want it repealed and the court has openly questioned the Commerce Clause element.

ted c on August 2, 2010 at 1:23 PM

Ha Ha!

/Nelson Munce

Key West Reader on August 2, 2010 at 1:27 PM

What are the odds that a particular motorcade would be on the way to, say a golf course? Could/would a birth certificate be produced?

Lily on August 2, 2010 at 1:18 PM

LOL

Key West Reader on August 2, 2010 at 1:28 PM

Suck on it Obowma…!

Seven Percent Solution on August 2, 2010 at 1:29 PM

Hudson did note the unprecedented nature of the administration’s use of the Commerce Clause to justify ObamaCare’s mandate:

The Obama administration is trying to use the Commerce Clause as a catchall like the military sometimes can use Other Duties as Assigned. If the outlaw Obama administration is allowed to use the Commerce Clause as such a catchall to do what the U.S. Constitution does not otherwise permit we might as well formally declare the U.S. Constitution null-and-void and make Hugo Chavez our President.

Tav on August 2, 2010 at 1:33 PM

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