Virginia's response

Federal government's arguments to dismiss the case

Virginia's response

Virginia is not injured by the federal health care law

Because the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act) under the Constitution's Supremacy Clause, Virginia's sovereign interests have been injured

Because the mandate doesn't take effect until 2014, the case is not "ripe"

1)  Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this does not prohibit the suit from being brought in the present

2)  Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid.  One of those decisions made the commonwealth forego more than $100 million in federal money.

Virginia's suit is barred by the Anti-Injunction Act

The act does not apply to states under these circumstances, because Virginia's action falls within an exception to the act that has been recognized by the Supreme Court

The government has the power under the Constitution's Commerce Clause to mandate the purchase of individual health insurance

1)  The federal government's argument is contrary to the text of the Constitution

2)  The federal government's argument is contrary to the meaning of the words of the Commerce Clause as understood by the Founders

3)  The federal government's argument is contrary to the historical context of the nation's founding.  When Great Britain instituted a tax on tea, the colonists' response was to boycott and to not buy tea.  Parliament had the power to regulate commerce, but even it did not attempt to force colonists to buy the taxed product.

4)  The federal government's argument is contrary to the traditional uses of the Commerce Clause.  The clause has always been used to regulate economic activity; never inactivity.

5)  The federal government's argument is contrary to the precedent of the U.S. Supreme Court.  The Court has set outer limits to the reaches of the Commerce Clause, including in cases such as Lopez and Morrison, saying that the clause must have principled limits, otherwise the federal government essentially would have unlimited power, rather than the limited powers enumerated in the Constitution.

Even if refusing to buy insurance is not commerce, the government can still force people to buy health insurance using the Constitution's Necessary and Proper Clause.

1)  Since 1819, the Supreme Court has held that any use of the Necessary and Proper Clause must be consistent with both "the letter and spirit" of the Constitution.  Any interpretation that would destroy the federal form of government (where federal power is limited only to those powers enumerated in the Constitution, with remaining powers reserved to the states and the people) is not allowed under that standard.

2)  In May, the Supreme Court decided Comstock.

The Court adopted a historical approach to the use of the Necessary and Proper Clause. Because the mandate is utterly unprecedented, it is unlikely to be upheld under a historical approach.

Even if the government cannot win using the Commerce Clause and Necessary and Proper Clause arguments, the federal health insurance mandate can be justified under the government's taxing authority.

1)  The penalty for not buying insurance is not a tax.  Congress called it a "penalty" and claimed authority to act only under the Commerce Clause.  To argue otherwise now ignores what Congress actually did.

2)  A penalty for inaction is not a tax of any kind known to the Constitution, when judged historically.