By Dave Andrusko

U.S. District Judge Henry E. Hudson's 32-page decision in the state of Virginia's challenge to ObamaCare makes for fascinating reading. In a nutshell Hudson said no to the federal government's request to throw out Virginia's suit, meaning the Obama Administration will have to defend the merits of its health care "reform" legislation come October.

Virginia Attorney General Ken Cuccinelli

Acting on behalf of the Commonwealth, Virginia Attorney General Ken Cuccinelli argued that in requiring individuals to buy insurance, Congress had unconstitutionally exceeded its powers. In March the Department of Health and Human Services asked Hudson to dismiss the lawsuit which he refused to do yesterday.

The challenge was to the constitutionally of Section 1501 of the Patient Protection and Affordable Care Act (ObamaCare), which requires most American citizens to purchase a government-approved health insurance plan by 2014 or pay a fine.

"The requirement that all Americans must purchase health insurance or face a penalty is not permitted under the Commerce Clause of the United States Constitution," Virginia Gov. Bob McDonnell said in a statement. "I look forward to the full hearing this fall." (The opinion in "Commonwealth of Virginia v. Sebelius" can read online at www.concurringopinions.com/wp-content/uploads/2010/08/virginia-opinion.)

According to Judge Hudson's opinion, Cuccinelli challenged the law not only because Section 1501 "exceeds the power of Congress under the Commerce Clause" but also because it is "directly at tension" with Virginia's recently enacted Health Care Freedom Act.

"Succinctly put, the Commonwealth defies the Secretary [of HHS] to point to any Commerce Clause jurisprudence extending its tentacles to an individual's decision not to engage in economic activity," Hudson wrote. Alternatively, the state maintained that Section 1501 is in "direct conflict" with the Virginia Health Care Freedom Act and therefore "encroaches on the sovereignty of the Commonwealth and offends the Tenth Amendment to the Constitution."

Judge Hudson rejected HHS Secretary Kathleen Sebelius' argument that Virginia lacked standing. In addition, he wrote
"As previously mentioned, the Commerce Clause aspect of this debate raises issues of national significance. The positions of the parties are widely divergent and at times novel. The guiding precedent 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."

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