Monday, August 9, 2010

More on Virginia's standing (or the lack thereof)

As I have written in prior posts, I think there is plenty of room in the currently governing Commerce Clause doctrine to hold that the minimum coverage requirement (or individual mandate) embodied in ACA §1501 exceeds Congress’s commerce power. I also think that current law governing Congress’s taxing power—if only because it is so sparse—would permit a court to hold, on the merits, that §1501 is unconstitutional. So this part of Judge Hudson’s opinion (pp. 14–31), though I do not necessarily agree with it, seems eminently defensible.

What still gives me pause is Judge Hudson’s conclusion that the Commonwealth of Virginia has Article III standing to challenge the constitutionality of §1501 because its legislature enacted the “Health Care Freedom Act,” which does no more than declare that no Virginia citizen can be forced to purchase health insurance (except for in certain narrow circumstances). The existence of the Virginia law is enough to create standing, Judge Hudson reasoned, because a state has a “right to create and enforce its own legal code.”

Most of the time, when I think an idea is clearly wrong, it is because I have missed something. I have been too quick to dismiss something out of hand. Thus, that probably remains the best explanation here. Nevertheless, after a week of reflection, I am still left thinking that Judge Hudson's standing analysis cannot possibly be right.

Why? The basic reason is that, if this proposition is true, then any state, in any circumstance, could enact a law stating something akin to “federal Public Law [fill in the blank] is inoperable in this state,” and thus have standing to sue the United States government in federal court to have the federal law declared unconstitutional. Indeed, the logic of Judge Hudson’s opinion would extend to administrative regulations as well, as those, too, are part of a state’s “legal code.” So presumably a state-level agency could promulgate a regulation stating that, say, it is inconsistent with state law for any government to regulate greenhouse gases, and the existence of that regulation alone would give the state standing to challenge the federal government’s regulation of private firms in that state.

The key passage of Judge Hudson’s opinion is the following, on p.11: “The purported transparent legislative intent underlying [the Virginia law’s] enactment is irrelevant. The mere existence of the lawfully-enacted statute is sufficient to trigger the duty of the Attorney General to defend the law and the associated sovereign power to enact it.”

That might be true as a matter of Virginia law. But within our federal system, a state law whose purpose is exclusively to declare that federal law is inoperable within that state's borders—that is, its purpose is to nullify the federal law—is not “lawfully enacted” in a broader sense. In our federal system, that purpose is simply ultra vires. Or so the Supreme Court held in M'Culloch v. Maryland, in the part declaring Maryland’s tax on the second Bank of the United States unconstitutional. Or so Andrew Jackson eloquently declared in December 1932 at the height of the tariff crisis with South Carolina. Or so the Civil War seemed to resolve.

So I remain confused as to how this proposition could possibly hold as a matter of constitutional law. Again, I’m probably mistaken, in some way. But I am still shaking my head wondering how this can possibly be correct. Virginia cannot have Article III standing on this basis.