Cucinelli's Sympathetic Judge.

Jack Balkin reads the recent decision from Judge Henry Hudson, who ruled that the lawsuit filed by Virginia Attorney General Ken Cuccinelli can go forward and finds more then a few conservative dog whistles:

Judge Hudson, however, has tipped his hand about the merits in the way he describes the case. He clearly sympathizes with the state of Virginia. First, he characterizes the challenge as a "narrowly-tailored facial challenge" (normally, one says this about as-applied challenges, not about facial challenges, which are generally characterized as broad based). Second he characterizes the issue as one of first impression, which is precisely what opponents of the individual mandate want. Third, he characterizes the issue as whether individuals can be forced to participate in interstate commerce, which also accepts the framing by opponents of the individual mandate. Fourth he massages a quote by a Justice Department attorney to suggest that the government is conceding that Congress would not have the power to enforce a tax penalty if the mandate "is not within the letter and the spirit of the Constitution." This is also the view of the opponents of the individual mandate, who want to merge the taxing power argument with the argument about the commerce power.

Nonetheless, Balkin concludes that it is "still very likely that the Supreme Court will uphold the individual mandate" should a challenge to the Affordable Care Act reach the high court. That may depend on whether Justice Antonin Scalia feels like being consistent, and the recent ruling in McDonald v. Chicago suggests that's not a safe bet.

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