The Washington Post is reporting that a federal judge has denied the Obama Administration’s motion to dismiss Virginia’s constitutional challenge to the recently enacted health care reform law.
While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate–and tax– a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court not any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this stage that the Complaint fails to state a cause of action.
The Secretary’s Motion to Dismiss will therefore be denied. Resolution of the controlling issues in this case must await a hearing on the merits.
SECOND UPDATE: Jack Balkin offers his take at Balkinization.