The Obama administration suffered another setback today in Virginia v. Sebelius, one of several lawsuits challenging the constitutionality of the federal health reform law’s individual mandate provision.  In papers filed in opposition to Virginia’s summary judgment motion, Secretary of Health and Human Services Kathleen Sebelius advanced a tenuous eleventh hour legal argument.  Purporting to rely on the Federal Rules of Civil Procedure, the Secretary argued that Virginia’s failure to join the Secretary of the Treasury in the lawsuit is fatal to the case and entitles the federal government to win.  In other words, the Secretary argued that because the Treasury Secretary is the official responsible for administering the Internal Revenue Code (which is the mechanism for assessing penalties on Americans who choose not to purchase health insurance), the court cannot award complete relief in the case because the Treasury Secretary, as an indispensable party, has not received adequate notice of the lawsuit.

It took U.S. District Judge Henry Hudson only two and a half pages to dispense with such a frivolous argument.  “Both cabinet secretaries [HHS and Treasury] are represented by the Attorney General of the United States, who is counsel of record in this case,” the Judge’s order stated.  Accordingly, “[t]he real party in interest, the United States government through its Attorney General, has received notice of this lawsuit and an opportunity to respond.”

There’s an old saying often taught to students in law school:  If the facts hurt your case, argue the law.  If the law hurts your case, argue the facts.  If you can’t argue either the facts or the law, argue procedure.

Editor’s Note: Next Thursday, October 21 at 9:30 a.m., tune in to a live WLF Media Nosh program, “The States v. ObamaCare: Legal Challenges to the Health Care Law and How they Are Faring in Court,” where former Pennsylvania Governor Dick Thornburgh will moderate a panel discussion featuring Virginia Attorney General Kenneth Cuccinelli, former Acting Solicitor General of the U.S. Walter Dellinger, and David Rivkin, lead counsel to Florida and 19 other states challenging the Affordable Care Act.  Register at