Diary

Yes Virginia, There is no Santa Claus

Virginia’s lawsuit challenging Obamacare hit the rocks today when the algorithm that randomizes judges hearing the Fourth Circuit of Appeals spit out the names of two Obama-appointed judges and one Clinton-appointed judge to hear the appeal of the controversial health care law.  The Virginia suit was upheld by the lower court, which ruled the individual mandate unconstitutional, but declined to throw out the remainder of Obamacare.

The three judges are James A. Wynn, Jr, Andre M. Davis, and Diana Gribbon Motz.

Since nobody expects the ruling of the Appeals Court to be the last word on the constitutionality of the individual mandate, today’s news is not earth-shattering, though the likelihood that the panel will reverse the lower court decision will give the Obama administration some talking points and propaganda in the court of public opinion as this case heads to into the real showdown in SCOTUS.

One potential silver lining:  To this point, no Republican-appointed judge has ruled in favor of the individual mandate and no Democrat-appointed judge has ruled against it.  With all three judges in the Fourth Circuit panel being Democrat-appointees, if any of them dissent, they will become the first (D) judge to rule against Obamacare’s core lever.

The judge to watch in the Virginia case is most likely Judge Wynn, who was a captain in the U.S. Navy Reserves, where he served for almost 30 years, along with his service as a military trial judge.  During this time, he also received two Navy Meritorious Service awards.  In reviewing a sampling of his judicial opinions, it does not seem that he is a strident idealogue – he appears to give much more deference to established precedent than activist judges.

With today’s news, we should expect the worst from the Virginia case, while still holding out some solid hope that the most consequential case – the Florida lawsuit, which is joined by 26 states – in which the judge ruled the individual mandate to be unconstitutional and threw out all of Obamacare.