HCR: File Under “Not Shocking”

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    U.S. District Court Judge Henry Hudson denied the U.S. Justice Department’s motion to dismiss under F.R.C.P. 12(b)(6) today, ruling that the complex constitutional issues raised by the case required a full hearing on the merits.  The suit, Commonwealth of Virginia v. Sebelius, was brought by the Virginia Attorney General on behalf of the people of Virginia, and the complaint argues that the individual mandate requirement of the Affordable Care Act, which requires that most people either get health insurance by January 2014 or pay a fine, is unconstitutional on two grounds.

    In response, the U.S. moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) (failure to state a cause of action on which relief can be granted), arguing that the state of Virginia lacked standing to sue on behalf of its residents in this instance; that the Anti-Injunction Act precluded the relief Virginia seeks; that the issue is not ripe for adjudication (inasmuch as the challenged provision does not take effect until January 1, 2014); and that, in any event, the provision is valid under the Commerce Clause as well as under Congress’ taxing power.

    In denying the motion to dismiss, Judge Hudson found that the state has standing both because the citizenry might not having individual standing and for other pragmatic reason; that an established exception to the Anti-Injunction Act bars its application to the instant case; that the issue was ripe because people and insurance companies will have to evaluate plans and make changes far before 2014, thus the effects of the provision are already being felt; and that Virginia raised claims sufficient to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6).

    While opponents of this bill are going to crow about this being some sort of victory, it is not, at least not a victory that matters at all in the larger scheme of things.  To survive dismissal under 12(b)(6), a complaint need only raise issues that are legally viable if one assumes that all of the assertions made by the plaintiff are true, even if that assumption is “unlikely in fact.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).  The court does not concern itself with likelihood of victory on the merits, nor does it resolve any of the conflicts surrounding the legal issues.

    Besides, I don’t know how one claims victory from clearing a procedural hurdle when the ruling could not have been less surprising.  Not only was Judge Hudson appointed to the federal bench by George W. Bush in 2002 after having served two stints as Commonwealth Attorney for Arlington County and having been a Virginia state court judge, but he also has financial ties to Ken Cuccinelli, the A.G. bringing the suit on behalf of Virginia, and to a number of Republicans who have openly opposed the Affordable Care Act and clamored for its immediate repeal.

    From 2003 through 2008, Hudson has been receiving “dividends” from Campaign Solutions Inc., among other investments. In 2008, he reported income of between $5,000 and $15,000 from the firm. […]

    A powerhouse Republican online communications firm, Campaign Solutions, has done work for a host of prominent Republican clients and health care reform critics, including the RNC and NRCC (both of which have called, to varying degrees, for health care reform’s repeal). The president of the firm, Becki Donatelli, is the wife of longtime GOP hand Frank Donatelli, and is an adviser toformer Alaska Gov. Sarah Palin, among others.

    Another firm client is Ken Cuccinelli, the Attorney General of Virginia and the man who is bringing the lawsuit in front of Hudson’s court. In 2010, records show, Cuccinelli spent nearly $9,000 for Campaign Solutions services.[…]

    The nexus between the chief lawyer and the judge spurs questions about judicial objectivity. At the very least, it shows how tightly connected the legal and political worlds can be and how difficult it is to remove the partisan threads from the heath care related lawsuits.

    While I am absolutely not suggesting that Judge Hudson did anything untoward in making today’s ruling, I am also not naive enough to think that there was ANY chance in the world that this case was going to get kicked on a 12(b)(6) motion.