Monday, December 13, 2010

Three things to watch

It is now noon in Richmond, so the ruling should be appearing momentarily. Here are three things to watch for:

1. Obviously, the most important is where Judge Hudson comes down with respect to the minimum coverage requirement. Within that, though, it will be important to examine the rationale he employs. Does he hold, as he suggested in his prior ruling, that Congress is simply disempowered from regulating "inactivity," no matter its relationship to a broader regulatory scheme?

2. If Judge Hudson declares Section 1501(b) unconstitutional, what does he say with respect to the remedy? Does he schedule a separate hearing, or does he impose an immediate injunction? If the latter, how broad is the injunction? Does it apply to any provisions of the ACA that are currently being implemented?

3. What, if anything, does Judge Hudson say about Virginia's standing? As discussed here before, Judge Hudson's reasoning as to why Virginia has standing to challenge the individual mandate -- to defend the legality of its Health Care Freedom Act -- is, at least to some of us, questionable. And this makes the case potentially vulnerable to reversal on justiciability grounds on appeal. Does Judge Hudson say anything more about the matter here?

We should have answers very soon.