No, not the lawsuit brought by Virginia Attorney General Ken Cuccinelli (in which Cato has been filing amicus briefs), but rather one brought by Jerry Falwell’s Liberty University. Most notably, the district judge found the individual mandate to be a lawful exercise of Congress’s powers under the Commerce Clause because

individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market…. Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.

This analysis echoes that of the Michigan judge who granted the government’s motion to dismiss the Thomas More Legal Center’s lawsuit in October — and is fatally flawed because everything is an “economic decision” that “substantially affects the national market” in something. If that’s the rationale upon which the Supreme Court ultimately upholds Obamacare, then we are left quite literally with no principled limits on federal power. Something tells me it won’t be so simple, however, even if the forces of darkness big, “self‐​checking” government prevail.


Nevertheless, the White House blog is understandably delighted with such rulings, trumpeting yesterday’s decision as yet another on an inexorable and inevitable march to the full vindication of an unprecedented assertion of federal power. (Question: Was nobody there paying attention to what voters said about all that November 2?)


In any event, as I said in a recent blog post and op‐​ed, nobody should yet declare victory or concede defeat. There will be many, many rulings yet, both at the trial court level and on appeal. This will not end until the Supreme Court rules, most likely in June 2012. But if you’re keeping track, the next major event is a December 16 summary judgment hearing in Pensacola in the Florida‐​led 20‐​state lawsuit — and we should also soon see a final ruling from the Cuccinelli case right before or after Christmas. Expect the White House to be a bit less chipper about these events.