On Monday, Federal District Court Judge Henry Hudson ruled that a legal challenge to the new Federal Healthcare Law, brought by the Attorney General of the state of Virginia, can proceed (Washington Post coverage is available here). Judge Hudson was quite succinct in explaining at least one Constitutional rationale for his refusal to grant the Federal government’s motion to dismiss the state of Virginia’s suit…

The Commerce Clause aspect of this debate raises issues of national significance. The position of the parties are widely divergent and at times novel. The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and associated Necessary and Proper Clause been extended this far.

In other words, despite what Congressman Pete Stark might believe, an action by the Federal government is not automatically Constitutional simply because the government decides to do it. Federal actions must have an identifiable basis in the Constitution, and it is not self-evident from either the text or the history of Constitutional interpretation that the new healthcare law does.
This past April, the Projo’s Edward Fitzpatrick got six of the candidates for Attorney General of Rhode Island on the record regarding their positions on suits challenging the Constitutionality of the healthcare law; four expressed doubt about any serious Constitutional issues being involved. I contacted all six candidates, to get their reactions to this initial Virginia ruling, and specifically asked the four candidates who saw no significant Constitutional difficulties about their positions, in light of a direct statement by a Federal Judge that the healthcare law is an unprecedented stretch of Constitutional authority.
Republican Erik Wallin, who had said in April that he supported “a legal challenge in order to defend our state from further infringement by the federal government”, responded to Judge Hudson’s ruling by saying…

I am encouraged by this initial victory in the fight against the government’s takeover of our U.S. health care system. I concur with U.S. District Court Judge Henry Hudson’s opinion that “never before has the Commerce Clause and associated Necessary and Proper clause been extended this far.”
Following the passage of President Obama’s health care bill, I immediately called upon our current Attorney General, Patrick Lynch, to join with other Attorneys General and challenge it. Not surprisingly, he refused, citing political reasons rather than legal. As Attorney General, I will immediately join with the growing number of Attorneys General, in challenging the health care law, standing up for both our State’s rights and each of our individual freedoms.

Independent Robert Rainville, who had told Fitzpatrick that he “wouldn’t rule out a suit”, responded that…

I am one of the few candidates for RI Attorney General, who is truly interested in joining in that suit. I am only interested in what’s best for Rhode Island families, and not what is best for a particular group or political party. I believe there is momentum and the legal basis for success in the legal challenges to this Federal Health Care legislation. However, I believe in the concept and intent of providing coverage for as many Americans as possible, but not at a higher cost and mandates that this legislation requires.
Since I am seeking to become the first Independent Attorney General Rhode Island has ever had, my decision making is motivated solely on what’s best for Rhode Islanders and not a partisan decision as all the other candidates in this race. Its very clear, the Democrats oppose the suit, and the Republicans support it. They make their decisions on what their respective parties say is best, and I look to what is best for Rhode Islanders in general.

A spokesman for Democrat Peter Kilmartin, quoted in April as saying that suits against the healthcare law “are nothing more than political stunts”, said in response to Monday’s ruling that…

Peter Kilmartin stands by his statement. The recent decision in Virginia was nothing more than a George W. Bush appointed judge making a procedural decision to allow this case to move forward. Kilmartin remains confident that the Health Care Reform Law is constitutional and will withstand further legal scrutiny.

A spokesman for Moderate candidate Christopher Little, who had told Fitzpatrick that “It seems…that whether we like it or not, Congress has the power to pass this bill”, said that Mr. Little would be providing a response to the ruling shortly.
Democrats Joseph Fernandez (“The charge that the law is unconstitutional is a politically motivated ploy”) and Steven Archambault (“The health-care law stands on sound constitutional footing”) have not yet responded to my inquiries.
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