Virginia’s Attorney General Ken Cuccinelli has won the right to have his state challenge the health care bill.  He insists that the federal government has no right to require the purchase of health insurance, or any product. It is unprecedented to penalize a non action.

What makes this case so pivotal is that this requirement is not severable from the bill.  Often these bills includes language that keeps the challenge of any particular section from invalidating the entire law, but this is not the case for this section.  In fact without this requirement the entire financial basis for the bill becomes undone.

We now stand a real chance for the health care bill to suffer constitutional scrutiny.  When several of FDR’s initiatives suffered constitutional setbacks he simply packed the court with more agreeable justices.

The legacy of a president is often imprinted by his Supreme Court appointees. A departing president can leave us with a case of “constitutional herpes.”

Remember this carefully in 2012.