Activist Conservative Bush-Appointed Judge Lets Cooch's Healthcare Lawsuit Go On

Unfortunately, this procedural ruling by a GWB appointee (0.00 / 0)

(on the issue of standing) is only the half it it.  There are numerous vacancies in the lower courts, which the GOP are blocking.  It's an unprecedented obstructionism and the Senate needs to act to end the charade.

Here's a Daily Kos article on the subject.


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by: KathyinBlacksburg @ Mon Aug 02, 2010 at 19:47:09 PM UTC

Legislating from the bench? (0.00 / 0)

How exactly is this judge legislating from the bench?  All he's saying is that VA has a right to sue and have the case heard.  Is that such a terrible thing?

I hate it when right-wingers use the term "activist judge" and when they say "legislating from the bench", and I hate it just as much when my fellow Dems do it.  

This is procedural.  I'm sure that VA will lose the case eventually, but is it really then end of the world that a Federal Judge said that he can't dismiss the lawsuit out-of-hand?

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by: VaPolitico @ Mon Aug 02, 2010 at 20:25:36 PM UTC

Judge Hudson Comments that the Health Care Law (0.00 / 0)

pushes the Commerce Clause to an unprecedented point, but recognizes the United States' arguments that the law does not push the Commerce Clause to the breaking point, both straightforward and subtle. There are too many Judges that dismiss cases prematurely on dubious procedural grounds.

Though I support the Health Care Law, I agree that Hudson's decision that Cooch gets to present his arguments in greater detail is far from "legislating from the bench" nor is it an "activist" decision.

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by: The Donkey @ Mon Aug 02, 2010 at 21:09:52 PM UTC

[ Parent ]

You think Cooch had "standing" on this? (0.00 / 0)

I'd love to hear the legal reasoning on that one.

1. Was Cooch "injured?"  If so, how can that be since the health care "mandate" doesn't take effect for several years?

2. Was there a causal connection between Cooch's (nonexistent) injury and the conduct complained of?  (Short answer: NO!)

3. Was there "redressability?" (A moot question since #1 and #2 don't apply).

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by: lowkell @ Mon Aug 02, 2010 at 21:27:04 PM UTC

[ Parent ]

For this judge to find "standing" (0.00 / 0)

is utterly absurd and completely without merit. Either he's completely incompetent or he's completely biased in favor of Cooch's argument.  I vote for the latter.

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by: lowkell @ Mon Aug 02, 2010 at 21:30:56 PM UTC

[ Parent ]

Lowell you ask good questions... (0.00 / 0)

but you don't answer my questions.  My post isn't really about the legitimacy of the lawsuit, as it is about the ridiculous rhetoric that is thrown around by people whenever it comes to our judicial system.  If they hear the case and this judge rules against it while making Cuccinelli look stupid/thwarting all future lawsuits, is it really that big of a deal that he allowed the lawsuit to proceed?  

Let's keep things in perspective and stop acting like every thing that doesn't go "our" way is evidence of unbelievable political bias.  It makes us look like silly Republicans when we do it.

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by: VaPolitico @ Mon Aug 02, 2010 at 21:51:21 PM UTC

[ Parent ]

I very much answered your questions. (0.00 / 0)

The judge - a Bush appointee, natch - is wildly biased in favor of Cooch.  As evidence, I present the fact that he found "standing" where there was certainly not any standing. Case closed.

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by: lowkell @ Mon Aug 02, 2010 at 21:53:25 PM UTC

[ Parent ]

Also... (0.00 / 0)

...check this out.

...From 2003 through 2008, Hudson has been receiving "dividends" from Campaign Solutions Inc., among other investments. In 2008, he reported income of between $5,000 and $15,000 from the firm. (Data from 2009 was not available at the Judicial Watch database.)

A powerhouse Republican online communications firm, Campaign Solutions, has done work for a host of prominent Republican clients and health care reform critics, including the RNC and NRCC (both of which have called, to varying degrees, for health care reform's repeal). The president of the firm, Becki Donatelli, is the wife of longtime GOP hand Frank Donatelli, and is an adviser toformer Alaska Gov. Sarah Palin, among others.

Another firm client is Ken Cuccinelli, the Attorney General of Virginia and the man who is bringing the lawsuit in front of Hudson's court. In 2010, records show, Cuccinelli spent nearly $9,000 for Campaign Solutions services.

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by: lowkell @ Mon Aug 02, 2010 at 22:00:44 PM UTC

[ Parent ]

h/t on that last one to (0.00 / 0)

NLS

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by: lowkell @ Mon Aug 02, 2010 at 22:01:19 PM UTC

[ Parent ]

Even worse (0.00 / 0)

You're absolutely right that the Commonwealth has no standing if the issues are limited, as the Cuccinelli suit rigorously did limit them, to the single issue of the individual mandate.  Other states suing the federal govt over the helath care law include actual issues in which the state has an interest, but ours is pure rights of individual VA citizens to not have a mandate imposed on them.  But that issue is solely between individual taxpayers and the federal govt, and the Commonwealth has no dog in that hunt.

Even Cuccinelli would agree with that analysis.  The whole point of having the General Assembly pass that "pre-nullification" bill, was the idea that that would give the Commonwealth the standing that it obviously otherwise must lack, or this bill would not have been necessary.

The pleading that the Commonwealth filed argues only in very conventional, Ninth Amendment terms, that the individual mandate is a constitutionally disallowed usurpation of individual rights by the Congress.  Again, there is no standing for the Commonwealth to get into that dispute.

Now, if you listen to what Cuccinelli says publically about the suit, you would think that it is all about the Tenth Amendment.  He speaks of the Commonwealth's supposed right, and duty, to rein in the federal govt, to interpose between it and VA citizens.

I don't think he's being hypocritical in talking Tenth to his followers while his suit only talks Ninth.  You don't really argue the Tenth within a pleading before a federal court, because the Tenth is about the powers of the states as opposed to the entirety of the federal govt, the federal judiciary as well as the Congress and the presidency.  You only have to resort to the Tenth after the federal courts have definitively, at the SC level, ruled against you.  You cite the Tenth in the nullification bill your legislature passes after you've lost in the federal courts.  

The pleading does, however, have some fairly undirected language, never developed into a real line of legal argument, citing the pre-nullification bill the GA passed.  I haven't read Hudson's ruling, but I don't see any other basis for him granting standing to the Commonwealth except as a response to the pre-nullification bill.

In effect, Hudson has acknowledged some legal force to a pre-nullification bill, has allowed a claim under the reasoning of the Tenth into the federal judicial process.  

If that ain't judicial activism, nothing is.  The Tenth was never really something that could ever produce an issue that the federal courts could ever, logically, adjudicate.  It applies to relations between the states and the federal govt as a whole, federal courts and all.  No federal court could be a judge in its own case.

The equal protection clause in the Thirteenth would seem to have driven a stake through the heart of this already judicially dead amendment.  Quite aside from that fact that it would have been poor form to cite an amendment dissing the authority of the court you're arguing before for Cuccinelli's suit to have used the Tenth, it would have been horrible PR.  An argument against the individual mandate on Tenth grounds would have claimed that the Congress cannot impose such a mandate on VA citizens because only VA can oppress its citizens in that manner.  It wouldn't have claimed that no govt has the power to impose such a mandate on individuals -- that would be a Ninth claim, none of the Commonwealth's business.  But now that we have the equal protection clause, no state can claim that it has powers over its citizens exceeding those of the federal govt, so it would seem that assertions by states of their rights under the Tenth no longer have any space, the set of things the Commonwealth can do to you that the fed can't having been reduced to a null set.

The Tenth can no longer be cited to make any claimns about rights of individuals vs any govt level.  That really leaves only one area for the Tenth -- state nullification of federal laws.  And Henry Hudson tells us that the Commonwealth gets to make claims before the federal courts based on the Commonwealth's right to nullify federal laws.  

That's not judicial activism?  Sure, we can all hope that wiser heads prevail as this turkey wends its way up the appeals ladder.  But the other party has long been engaged in a project to seed the federal bench with Federalist Society stooges and crypto-Constitution in Exile freaks, so I wouldn't bet the farm on it.  Today, I think of myself as one step closer to getting my draft notice from the Commonwealth Militia, and if that ain't judicial activism, the critter doesn't exist.  

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by: Glen Tomkins @ Tue Aug 03, 2010 at 16:12:29 PM UTC

[ Parent ]

The question of when the mandate takes effect (0.00 / 0)

really goes to the issue of "ripeness," not of standing.

As to standing, the Court reasons that standing is established because Virginia passed that statute making health care mandates illegal. That means its sovereign interests can be "injured" by the law. Cooch is not suing in his individual capacity.

I believe Judge Hudson when he says that no Court has found otherwise.

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by: The Donkey @ Mon Aug 02, 2010 at 23:26:52 PM UTC

[ Parent ]

Here's the definition of "standing" (0.00 / 0)

Courtesy of Lectlaw:

The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The party invoking federal jurisdiction bears the burden of establishing each of these elements. Id.

So, how has the Attorney General of Virginia - or the Commonwealth of Virginia or its citizens, for that matter - suffered "injury in fact," not "conjectural or hypothetical?" How is there a "causal relationship between the injury" and the "action of the defendant?" There isn't, and there isn't. Therefore, no standing.

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by: lowkell @ Mon Aug 02, 2010 at 23:59:54 PM UTC

[ Parent ]

Important to keep in mind (0.00 / 0)

the requirement that "a person must be sufficiently affected by the matter at hand."

What the standing requirement is mainly about is making sure that the plaintiff has enough at stake in the controversy so that the Court can have confidence that he/she will be an effective advocate for the plaintiff's side in the litigation.

I can see the government's argument that Cooch was really advocating for the rights of individuals affected by the mandate . . . but what the court decided (and I don't think it is that far out) is that the Commonwealth got a sufficient stake in the outcome by passing the law purporting to outlaw the mandate.

If you don't like that Cooch got this far, you really need to call on the carpet those democratic state senators who voted for the Virginia law.

Over at Ox Road South, Chap says:

My take on this whole episode is that the purchasing mandate (as I understand) does not take effect until 2014.  There will be two elections for Congress BEFORE that time, and any future Congress has the ability  to amend or even repeal the purchase mandate.  Therefore, it is premature for any judge to rule on the constitutionality of the mandate, as the issue is not "ripe" for determination.

I think Chap's "ripeness" objection is the better argument. But the Court's reasoning on that point was not outrageous either.

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by: The Donkey @ Tue Aug 03, 2010 at 00:57:43 AM UTC

[ Parent ]

I've totally "called on the carpet" (0.00 / 0)

the idiot Democrats who voted for this crap, and I will continue to do so.  They should be ashamed of themselves.

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by: lowkell @ Tue Aug 03, 2010 at 01:07:39 AM UTC

[ Parent ]

And no, it's certainly not "ripe" (0.00 / 0)

when the supposed "mandate" doesn't even kick in for 4 more years!

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by: lowkell @ Tue Aug 03, 2010 at 01:12:48 AM UTC

[ Parent ]

I've had at least a half dozen people... (0.00 / 0)

...up here in western New York who've asked me today if I'm happy to have moved out of Virginia and no longer have to deal with Cuccinelli. It's a shame that I have to defend my home state because of the actions of one right winger who will do anything to win points with the Tea Party.

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by: Bryan Scrafford @ Mon Aug 02, 2010 at 21:03:49 PM UTC

My Children All Live Out of State (0.00 / 0)

All of them, the two Democrats and the one Republican, think that Cuccinelli has made a laughing stock out of Virginia, Ultimately, his actions will negatively impact McDonnell's so-called efforts to attract jobs to the Commonwealth.

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by: Elaine in Roanoke @ Mon Aug 02, 2010 at 21:29:05 PM UTC

Read the Ruling (0.00 / 0)

I believe it is helpful to read Judge Hudson's ruling in its entirety.  Both the Washington Post and the VA Office of Attorney General have a link to the .pdf document.  At each point in making his decision, Judge Hudson summarized the opinions presented by both Virginia and the Federal Government in their respective filings on the Motion to Dismiss.  In each facet of his judgment denying the motion, he weighed the pros and cons of the arguments and decided that the Federal Government did not make their case that there was sufficient cause to stop the lawsuit from moving forward.  At this point, he was not asked nor did he make judgment on the overall merits of the lawsuit.  We should examine the judgment, point-by-point, and then make conclusions.

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by: Keith @ Tue Aug 03, 2010 at 01:14:57 AM UTC

I've read it. (0.00 / 0)

The "standing" argument in large part comes down to the "Virginia Health Care Freedom Act," which even this Bush appointee judge admits is of a "declaratory nature" with a "transparent legislative intent."  Essentially, Bob Marshall et al. rushed this law into passage for the very purpose of ginning up a phony "standing" argument so they could sue the federal government over the newly passed health care reform law.  Yes, it's "lawfully enacted," but it's also a mockery of what real law is supposed to be about. I also tend to agree with the Secretary of HHS, Kathleen Sebelius, that Virginia doesn't have "standing as parens patriae to bring an action against the federal government." Finally, I strongly question the "ripeness" argument being used here and tend to agree with Secretary Sebelius that the Commonwealth's challenge is premature. Other than that, I'd say the judge is right on!! :)

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by: lowkell @ Tue Aug 03, 2010 at 01:37:14 AM UTC

[ Parent ]

My reading of the judgment is different (0.00 / 0)

We agree that the Virginia Health Care Freedom Act was lawfully enacted.  Despite the various opinions regarding why this law was passed, Judge Hudson concluded that  considerations other than "lawfully enacted" are "irrelevant" in judging whether or not the Virginia law is in conflict with Federal law.  Thus, to say that the Virginia law is "a mockery of what real law is supposed to be about" is merely your opinion and does not have any legal standing.

Virginia states that it is not prosecuting this case in a  parens patriae capacity as a means of representing the citizens of the Commonwealth who may or may not want health insurance.  Rather, its argument is that the Commonwealth is acting as a sovereign power because one of its laws is in conflict with a Federal law and the Commonwealth is being forced to yield under the Supremacy Law of the U.S. Constitution.  Why the Commonwealth is challenging the supremacy of the Federal Government in this case - that the Individual Mandate feature of the Federal law is unconstitutional - has no specific bearing on the parens patriae or sovereignty argument.

The "ripeness" argument is clear and does not support your position.  As was stated in the judgment, ripeness is considered by "the fitness of the issues for judicial decision" and "the hardship of withholding court decision".  That the Individual Mandate does not come into force until 2014 does not eliminate the facts that 1) the laws of Virginia and the Federal Government are in conflict which is certainly an issue fit for judicial consideration and 2) a tremendous amount of work will be required by both individuals and the Commonwealth to prepare for 2014 which certainly can be considered a significant hardship.

In my opinion, Judge Hudson made a reasoned judgment in denying the Motion to Dismiss.    

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by: Keith @ Tue Aug 03, 2010 at 03:26:00 AM UTC

Right, the bottom line is... (0.00 / 0)

...you agree with Hudson's ruling. Chap Petersen doesn't, the Obama Administration doesn't, I'm sure many judges don't (and wouldn't have ruled this way).  Anyway, that's over with.  So, now it proceeds on the "merits," or lack thereof IMHO. We'll see...

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by: lowkell @ Tue Aug 03, 2010 at 10:20:00 AM UTC

[ Parent ]