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On Today’s Ruling in Virginia

Having failed in the legislative arena, opponents of health reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government. Now that this preliminary stage in the courts has ended, the government fully expects to prevail on the merits.

Since the enactment of health reform legislation in March, several state Attorneys General have filed lawsuits challenging the constitutionality of the Affordable Care Act.   Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government.  This is nothing new.   We saw this with the Social Security Act, the Civil Rights Act, and the Voting Rights Act – constitutional challenges were brought to all three of these monumental pieces of legislation, and all of those challenges failed.   So too will the challenge to health reform.

This morning, a federal district court in Virginia issued a procedural decision to allow a suit filed by Virginia’s Attorney General to move forward.   The court did not, however, rule on the merits of Virginia Attorney General’s claim that the Affordable Care Act is unconstitutional.   Judge Hudson’s opinion specifically states that the “Court’s mission at this stage is narrow” and that it “does not resolve contests surrounding . . . the facts [or] the merits of a claim.”  The court’s procedural ruling states only that the complaint could not be dismissed at this preliminary stage.     

Today’s decision merely said that the Virginia Attorney General has standing to challenge the lawsuit – which means that the court has jurisdiction to hear further arguments.  The federal government believes this procedural ruling is in error and conflicts with long-standing and well-established legal precedents – the types of precedents that, in the words of Chief Justice Roberts, are designed to preserve the “judiciary’s proper role in our system of government” and to ensure that our courts do not become forums for political debates.

Now that this preliminary stage has ended, the government fully expects to prevail on the merits.   The Affordable Care Act falls well within Congress’s power to regulate under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.   As President Reagan’s Solicitor General Charles Fried recently wrote, “the health care law’s enemies have no ally in the Constitution.”

After all, over 70 years of settled law is on the side of the Affordable Care Act.   In order to make health care affordable and available for all, the Act regulates how to pay for medical services – services that account for more than 17.5% of the national economy. This law came into being precisely because of the interconnectedness of our health care costs.   People who make an economic decision to forego health insurance do not opt out of the health care market, but instead shift their costs to others when they become ill or are involved in an accident and cannot pay.  

We do not leave people to die at the emergency room door – whether they have insurance or not.  Those costs – $43 billion in 2008 alone – are borne by doctors, hospitals, insured individuals, taxpayers and small businesses, in Virginia and throughout the nation.   According to a recent study, this cost-shift added on average $1,100 to family premiums in 2009 and roughly $410 to an individual premium.

And many reforms provided by the law – such as the requirement that insurers cover individuals with pre-existing conditions – can only be effective if everyone is part of the system, which is why the minimum coverage, or shared responsibility, requirement is part of the law.   Under the new health care reform law, an estimated 1 million uninsured Virginians will gain coverage, nearly 400,000 residents will qualify for premium tax credits to help them purchase insurance, and 109,000 small businesses in Virginia could gain the benefit of tax credits for coverage for their employees (Source: and

That’s why a number of groups representing breast cancer patients, children’s health advocates, people with disabilities, small businesses and others filed an amicus brief in support of the Affordable Care Act, citing evidence in seven states that “preexisting conditions provisions, absent a minimum coverage provision, are a failed experiment.   At best, they result in premium increases.  At worst, they can cause the total collapse of a state’s individual insurance market.” You can read the brief here.

Stephanie Cutter is Assistant to the President for Special Projects