Virginia could be the first state to issue a Constitutional challenge to the Health Care legislation passed by the House yesterday. Last Thursday, before the bill had passed, Virginia AG Ken Cuccinelli announced that he would bring suit, stating that the legislation “violate[s] the plain text of both the Ninth and Tenth Amendments.” Presumably, he’s referring to the insurance mandate that would require eligible Americans to purchase health insurance by 2014 or face fines, something the Va. Legislature determined would be illegal several weeks ago. Will this happen? Probably. Cucinelli is, to say the least, a staunch conservative and has the energy to pursue this. Does he have a case? Actually, maybe. If history has shown anything it’s that the “plain text” of the Constitution is anything but. Still, the 10th Amendment states that powers not specifically enumerated to the Fed by the Constitution belong to the states and the people. The trick is showing that the Fed has overstepped its bounds in this instance. Typically, courts rule in favor of the Federal government in 10th Amendment cases, but they do occasionally swing towards the states’ rights side. With the Supreme Court being fairly conservative, at the moment, anything is possible.
That’s the word from the US Circuit Court, which refused to hear the case en banc, with seven of the eight judges voting that the three judge panel ruled correctly that MPD’s attempt to cordon off Trinidad from all but the residents of the neighborhood was unconstitutional.
There’s just one avenue of appeal left: The Supreme Court, just up the street. AG Nickles might have a receptive audience there, given the makeup of the court, but I wouldn’t bet on the District just yet.