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Hudson hears Obamacare arguments

Lawyers for the commonwealth and the federal government took two different views of the so-called individual mandate in argument today over the constitutionality of the Patient Protection and Affordable Care Act, perhaps better known as Obamacare.

Virginia Solicitor General E. Duncan Getchell Jr. contended that the requirement that an individual have insurance or pay a penalty is beyond the authority the Commerce Clause gives to Congress.

Never before has Congress attempted to command an individual to buy goods or services from another individual, Getchell argued. The inactivity of failing to buy insurance cannot be the economic activity that Congress must identify before it can exercise its commerce power, Getchell contended.

Deputy U.S. Assistant General Ian H. Gershengorn responded that Getchell had misstated the issue. Everyone is in the healthcare market and will incur the expense of medical care, he said. It’s a matter of whether they pay in advance or force taxpayers and those with insurance to pay their share of the cost, he said.

Congress has the authority to regulate the market so that the consumers of healthcare pay up front, he argued.

Getchell and Gershengorn argued for almost two-and-a-half hours, frequently citing friend-of-the court briefs and two other opinions on the PPACA issued earlier this month, one from Michigan that upheld the government’s position and another from Florida that allowed a suit by 16 attorneys general and four governors to proceed to the summary judgment stage.

Today’s arguments were on cross motions for summary judgment, which puts the case at roughly the same point as the Michigan action and a step ahead of the Florida case.

Virginia Attorney General Kenneth T. Cuccinelli II is challenging the law ostensibly to defend legislation passed by the General Assembly that attempts to ban the individual mandate.

At the end of the hearing, Judge Henry E. Hudson praised the attorneys on the quality of their briefs and arguments and said he would issue an opinion before the end of the year.

Not that he was under any illusion that his would be the final word on the matter. “This court is just one brief stop on the way to the Supreme Court,” he said.
By Alan Cooper

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