Multi-state anti-Democare suit catches up with Virginia’s

The lawsuit against Democare filed by twenty states and eagerly followed by all but one of the remaining thirty was allowed to go forward yesterday.

For those of us fortunate enough to call Virginia home, the decision was not breaking or urgent news. Attorney General Ken Cuccinelli had filed a similar suit on our behalf and got a similar green-light ruling two months ago.  That said, I don’t remember Judge Henry Hudson tipping his cards on the evenutal ruling the way Judge Roger Vinson did here.

Vinson took aim at the Obama Administrations three-card-monty on the language of the health mandate (Washington Post):

In his 65-page ruling, Vinson largely agreed with the 20 states and the National Federation of Independent Business, saying Congress was intentionally unclear when it created penalties in the legislation. The states have argued that Congress is overstepping its constitutional authority by penalizing people for not doing something – not buying health insurance.

The penalties for those who do not buy insurance are never referred to as taxes in the 2,700-page act, Vinson wrote. Attorneys for the Obama administration argued at a September hearing that the penalties should be considered a tax levied by Congress – as allowed by its constitutional power to regulate interstate commerce.

“One could reasonably infer that Congress proceeded as it did specifically because it did not want the penalty to be ‘scrutinized’ as a $4 billion annual tax increase,” Vinson wrote.

“It seems likely that the members of congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.”

That may mean bad news for the mandate.  No wonder Cuccinelli himself chimed in on Vinson’s ruling (WaPo – as one would expect, he was quite happy).

Each case (and the one that went the other way in Michigan last week) is headed to the Supreme Court, meaning the entire ball of wax is likely dependent on the views of one person: the Reagan-appointed, recent Ninth Amendment devotee Anthony Kennedy.

I’d say Democare’s mandate is the underdog, but not by much.

Cross-posted to BD