Monday, August 2, 2010


First, if there is anyone who has yet to read it, here is today's ruling from Judge Hudson denying the United States's motion to dismiss. I'm on a family vacation, so I'm just sitting down to read the opinion now. So far, I've only read the standing analysis (and I have not read any of the commentary, which will probably explain why I'm completely misguided). But my reaction is . . . really?

The implications of the standing analysis seem startling. Its logic dictates that, following the enactment of any federal law, a state legislature could enact a statute declaring that the federal law has no effect within its borders. The state would then have an injury to its sovereignty created by the "conflict" between the federal and state law--which prevents the state from "enforcing" its law (though it is unclear how such a law could really be enforced)--that entitles the state to pursue its action in federal court.

States arguably should have standing to sue the federal government to determine whether a state law is preempted in particular circumstances--specifically, when the existence of the federal law jeopardizes the legality of the actual or imminent enforcement of a state law. For instance, if California makes it unlawful to generate a certain level of greenhouse gases, and a federal law arguably preempts the state law, the state plausibly is entitled to seek declaratory relief to determine whether the enforcement of the state law is permissible (i.e., not preempted), at least when the state is actually committing (or about to commit) significant resources to its state-level enforcement regime.

Here, though, there is no sincere (or realistic) desire by Virginia to "enforce" anything. (The ACA may be forcing Virginia to carry out certain actions already related to Medicaid, but those actions are wholly unrelated to the minimum coverage requirement of ACA 1501 that the Commonwealth is challenging.) Virginia's law, as a transparent attempt to nullify a federal statute, was legally invalid at its inception. It purports to direct the federal government on how it can regulate the citizens of Virginia. This is constitutionally inadmissible. Or at least it has been since 1865.

So I'm at a a loss to understand how the existence of Virginia's Health Care Freedom Act is somehow relevant--let alone sufficient--to grant the Commonwealth standing. I'm sort of stupefied.