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.
The Washington Times is reporting that the court has declined to review their earlier decision en banc, leaving it to stand that the Trinidad roadblocks are unconstitutional. A request for a hearing before all the justices, rather than just three, is the normal next step after losing a decision at the appellate level. The city could opt now to appeal to the supreme court but the vast majority of requests to the SC are denied, leaving the city in a quandry.
Or perhaps not. The city’s record in actually honoring decisions against it are not so fantastic. The Heller handgun decision explicitly mentioned semi-automatic handguns but the initial revised restrictions attempted to continue banning them. Just a month ago the city lost a case in arbitration regarding the union agreement and the “All Hands on Deck” operations but Chief Lanier indicated they had no intention of stopping. Perhaps the city will just opt to ignore this decision as well.