Judge Henry E. Hudson may be the most powerful man you have never heard of. As a federal district court judge in Richmond, VA, he will decide — before year’s end, he now asserts — on a challenge to the recently passed federal health care law. The suit, brought by Virginia’s attorney general, Kenneth T. Cuccinelli II, asserts that the provision of the law requiring people to buy health insurance is unconstitutional. While the Supreme Court has ruled that the Commerce Clause of the Constitution allows that body to regulate “activities that substantially affect interstate commerce,” the question that Hudson must decide is: does the failure to do something — in this case, the act of buying insurance — constitute an “activity,” albeit a passive one, that can be lawfully regulated by Congress?
If he says no, and he is expected to say no, then the suit will no doubt be appealed all the way to the Supreme Court, but the really awkward question is, this one: if Hudson rules against the federal government on this narrow issue, will he, at the same time enjoin the entire law, blocking its enforcement and creating havoc in the health care industry?
Cuccinelli wants him to do just that. Along with officials in at least 20 other states with similar law suits, he had underscored that Congress failed to write “severability” language into the law that would shield other parts if this one requirement were struck down.
Hudson may not be well known, but he is no stranger to the spotlight: in 2007, it was he sentenced NFL quarterback Michael Vick to prison for the football player’s involvement in a dog fighting venture.