235 years after Patrick Henry gave his "Give me Liberty or Give me Death" speech, Virginia filed their suit against the health care act 1 mile away on the same street on which PH gave that speech.

Schedule

Oral arguments will be on July 1st. If the lawsuit passes the dismissal charge, the summary judgement will be handed down on October 18th.  It will then certainly be appealed to District Court and eventually appealed to the Supreme Court.  The Florida lawsuit will be heard on Sept 14th and will end up being merged with the Virginia lawsuit when heard by the Supreme Court. The Supreme Court would likely issue its ruling either the summer of 2012 or summer of 2013.

Federal Position

1. VA is not injured
2. If VA is injured, they aren't injured yet (law is not in effect yet)
3. It is tax law and you can't sue until you pay the tax (and since states do not pay taxes, VA can never sue)
4. It is allowed by the commerce clause
5. If not, it is allowed by the tax/general Welfare clause
6. If not, it is allowed by the necessary and proper clause

Virginia Position

Key Points:

1. Case is about Liberty 
2. Commerce clause has never been used to regulate inactivity
3. Upholding this law would eliminate all limits on federal power

Specific Counters to Federal Positions:

1. Virginia is injured, it has a law that has been nullified by an act of Congress (congressional laws can only override state law when federal law is constitutional)
2. It is currently injured because both laws have already been passed creating a known conflict
3. The law is not a tax law, as described in point 5 below
4. The commerce clause was not intended to support such laws. This is the first time a law has imposed requirements for people to purchase a product. In fact, the constitution only gives Congress the right to 'regulate' commerce, the term 'regulate' means "to control that which already exists," thus Congress does not have the right to pass a law such as this. Upholding this law would break from this traditional limit on Congress and would essentially eliminate all limits on federal power (meaning that we would finalize the transformation from a federation into a single nation and the state governments would be meaningless). This is directly related to what the Boston Tea Party was about; the ability of citizens not to buy a product that is being unfairly regulated. In short, if the law is upheld, there is nothing preventing Congress from passing a law saying that every citizen must purchase a new Chevy every three years.
5. The law clearly does not impose a tax; the law specifically uses the word "penalty" for those who refuse to purchase qualifying health insurance
6. The necessary and proper clause is clearly written to be a limit on all of the other powers granted by the Constitution and not an open-ended ability to impose whatever it desires.

What are our chances?

Courts are unpredictable, especially when there is no controlling precedent, but Cuccinelli believes that we have a better than even chance.

Severability?

This clause, unlike many laws, does not contain a severability clause; thus, in theory, if any part of the bill is ruled unconstitutional, the entire law should be deemed unconstitutional.

Anomaly

Presumably Kagan would recuse herself from the Supreme Court case since she worked for the administration during development of the law. This raises the possibility of a 4-4 tie in the Supreme Court. This means that there is a possibility that the Appellate Court rulings would apply, which may be different between the Virginia and Florida cases; thus, different federal districts could live under different rulings.

What can we do? 

 - Elect the right people

 - Spread the word  

 - Promote liberty