The first issue that has to be decided does Virginia have status to file the suit. Virginia passed a law protecting individuals from having to purchase health care insurance. The law was done on the grounds of the tenth amendment, giving rights to the states.
The judge that is hearing this case is Henry Hudson, a Bush appointee. He has said he will be deciding if the case can move forward within 30 days. The case will then be appealed at the district level and then should wind its way to the Supreme Court. This case is moving at lightening speed. The other cases filed by 20 other attorneys general is expected to be heard until September.
Hudson did ask some pointed questions of both sides. The attorney for the Commonwealth of Virginia argued that inactivity does not qualify as commerce;
"No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce,"
the judge asked the federal attorney to give an example of when the government has forced an individual to purchase a product in the past.
The response was that since all people will use health care at some point;
Gershengorn responded that health care is unlike other products because everyone eventually consumes it. He said Congress was merely trying to regulate how it is paid for.