While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen's decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side's position, this court cannot conclude at this stage that the [Virginia Attorney General's] complaint fails to state a cause of action.Writes Federal District Judge Henry E. Hudson, whose George-W.-Bush-appointed wisdom will doubtless be contrasted with that of his District of Arizona counterpart, Judge Susan Ritchie Bolton.
The Secretary [of Health and Human Services]'s Motion to Dismiss will therefore be denied. Resolution of the controlling issues in this case must await a hearing on the merits.Commonwealth of Virginia v. Sebelius (.pdf; 32 pgs.)
P.S. I don't believe this is the suit J.B. Van Hollen wanted to join.