RICHMOND—Federal Judge Henry Hudson has ruled the federal health care bill’s individual mandate unconstitutional, but said that does not kill the entire bill.

He is the first judge to rule against the law; two other judges, including one in Lynchburg, have deemed it constitutional. Other lawsuits are still pending, including one in Florida in which 20 states are parties. The challenges to the bill are expected to end up before the U.S. Supreme Court.

“I am gratified we prevailed,” Cuccinelli said in a statement. “This won’t be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution.”

Cuccinelli had sued based on a law Virginia passed in the 2010 General Assembly session, which says the federal government cannot require Virginians to buy health insurance.

Cuccinelli had argued that the health care bill’s requirement for individuals to buy health insurance or pay a penalty was beyond Congress’ constitutional powers. He also had argued that finding the individual mandate unconstitutional would upend the whole bill, because the health care bill did not include a severance clause.

The federal government had argued that everyone uses the health care system eventually, thus making everyone a consumer, and the question is how they pay for it—by choosing insurance, or by showing up in emergency rooms whether they can afford to pay the bill or not.

In a written ruling issued Monday, Hudson said it is beyond Congress’ powers to require individuals to purchase health insurance.

He said minimum essential coverage “appears to forge new ground and extends the Commerce Clause powers beyond its current high water mark.

“The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers,” Hudson wrote. “At its core, this dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate.”

However, Hudson said he did not find that removing the individual mandate would scuttle the bill, and so left the rest of the bill intact.

While the lawsuit is expected to go to the Supreme Court eventually, Cuccinelli and now Rep. Eric Cantor have suggested it be fast-tracked to that court, and bypass the appeals court that would normally be the next step.

“In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately,” Cantor said in a statement, urging the president and U.S. Attorney General Eric Holder to expedite the appeals process.

Cantor also said that when Republicans gain the majority in the House of Representatives next month, they will repeal the health care bill. Such a repeal, however, would have to also be approved by the Democratic-led Senate and President Barack Obama.

Chelyen Davis: 804-/502-5002
cdavis@freelan@freelancestar.com