Of the fourteen plus lawsuits brought against the federal government challenging the constitutionality of the Affordable Care Act (ACA), one has succeeded in winning the favor of a Virginia judge. Judge Henry Hudson of the US District Court for the Eastern District of Virginia ruled yesterday that the individual mandate, or the requirement individuals purchase health insurance by 2014, is unconstitutional. Hudson cites two main problems with the mandate’s constitutionality. Congress, in passing the mandate, has exceeded its power 1) to regulate commerce, and 2) to impose a tax or penalty when and individual chooses not to purchase health insurance coverage. In non-legal language — this means, according to Judge Hudson, that the government cannot require you to purchase a product (health insurance) or charge you a penalty (a tax) when you choose not to buy a product. Attorney General Ken Cucchinelli (Virginia) and his supporters view the ruling as a blow to the ACA. However, the real impact of the ruling is simply pushed further down the road when the Supreme Court will determine its fate.

What does this ruling mean for states right now?
Very little. Judge Hudson did not halt the implementation of ACA. In other words, it’s ‘business as usual.’ States and advocates should continue to push ahead with implementation and public education initiatives. As correctly pointed out by law professor Abbe Gluck in the New York Times’ “Room for Debate” — states, even those led by Governors opposed to the ACA, still have responsibilities to implement key pieces of the ACA in 2013 and 2014. Gluck notes that the individual mandate is an IRS (i.e. federal) relationship with individual citizens and does not specifically involve state government. Moreover, Hudson’s ruling involves one provision of the ACA (individual mandate), not the entire law. Therefore, the Virginia ruling does not grant anti-ACA state officials permission to impede the daily work necessary to implement the law and expand health care access to millions of Americans.

Where does this case go next?
It is unclear where this case will go next. AG Cuchinelli’s office is hopeful that the Justice Department will agree to bypass the appeals process and request a direct route to the Supreme Court. It is clear from Cucchinelli’s fervent pursuit of this case that he would like to get his case to the Supreme Court first (that is before Florida’s Attorney General Bill McCollum). Obtaining an agreement with the Justice Department to fast track the Virginia case would certainly increase his chances of being first in line to the Supreme Court while quieting the Florida case. The Florida case led by AG Bob McCollum begins its oral arguments on Thursday (December 16) before Judge Roger Vinson US District Court of Northern Florida.

However, the chances of fast tracking the case are slim and have little precedent.  Furthermore, Philip Klein of The American Spectator highlights the political back story of this strategy: “During the Bush era, the Fourth Circuit [Virginia] developed a reputation as the most conservative in the nation, in large part because it sided with the administration on a number of key national security decisions, particularly involving terrorist detainees. But the balance has shifted dramatically since then. Currently, Democratic appointees outnumber Republicans by an 8-to-5 margin, with two vacancies remaining.” In other words, the Justice Department is hopeful that the odds may shift in its favor during the appeals process.

The two major lawsuits challenging ACA often spotlighted in the media (the Virginia-Judge Hudson case and the Florida-Judge Roger Vinson case) both rest on a conservative political strategy to secure rulings against the ACA early on by entering the judicial system via traditionally conservative judicial circuits. Due to the lack of precedent and clarity in the arguments surrounding the constitutionality of the individual mandate provision, the rulings tend to appear more reflective of a political frame rather than a legal one. That being said, the Supreme Court is not an easy read. Many feel uncertain of how this strategy will play out for all stakeholders.

What should advocates be doing?
Advocates should not stop their work in educating the public about the benefits of the ACA. While it is true, according to polls, that people do not like the idea of the individual mandate — these same respondents are in support of all of its related elements: covering those with pre-existing conditions, securing preventative care for our seniors, and making sure that all children have access to health coverage and that young people may extend their parental coverage through age 26 — and the list goes on.

Let us not forget that Judge Norman Moon of the U.S. District Court for the Western District of Virginia ruled in favor of the constitutionality of the individual mandate just two weeks ago. Judge Moon stated that the individual mandate provision was within the power of Congress to regulate a highly sophisticated industry that affects all Americans.

Finally, Stephanie Cutter in her White House blog reminds us of the merits in support of the ACA and the individual mandate:

– History is on our side — popularly embraced programs such as Social Security, the Voting Rights Act and Medicare faced legal scrutiny after their passage.
– Those who choose not to purchase health insurance DO consume health care through emergency room visits, over the counter drug purchases and hospitalizations. They are active participants in the health care market.
– All consumers and care giving institutions such as hospitals, doctors and community health centers absorb the cost of care for those without insurance coverage. These costs were $43 billion in 2008.

– Eva Marie Stahl, Policy Consultant