This was precisely the reasoning that Judge Hudson adopted in Virginia v. Sebelius, in his August decision denying the United States's motion to dismiss. And Judge Vinson stated that he was effectively adopting Judge Hudson's rationale.
The problem is that it is wrong--indeed, I think flat wrong--on the law. I think a fairly objective analysis of the issue dictates that the states themselves should be unable to challenge the individual mandate, unless there is some other injury in fact, aside from this inability to enforce their "health freedom" laws, that the states can establish. Here is why.
As a concrete example, consider the act adopted by Idaho, cited by Judge Vinson in his opinion. It states as follows:
- The power to require or regulate a person's choice in the mode of securing health care services, or to impose a penalty related thereto, is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the Ninth Amendment, and to the several states pursuant to the Tenth Amendment. The state of Idaho hereby exercises its sovereign power to declare the public policy of the state of Idaho regarding the right of all persons residing in the state of Idaho in choosing the mode of securing health care services free from the imposition of penalties, or the threat thereof, by the federal government of the United States of America relating thereto.
- It is hereby declared that . . . every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty by the federal government of the United States of America.
There are two basic reasons that, in my view, this cannot give rise to a state government having Article III standing to challenge the constitutionality of the federal statute the state has purported to nullify.
First, state nullification of federal law is simply incompatible with our federal system, at least as it has been understood since the conclusion of the Civil War. States lack the power to "declare" federal laws unconstitutional or otherwise inoperable within their borders. They can resort to various political means to resist the enforcement of such laws. And they can pass resolutions that express their disapproval. But they cannot, as a legal matter, declare federal law null and void. As a result, laws like Idaho's (or Utah's or Virginia's or Oklahoma's) are simply invalid ad abnitio. They are not "law" in our constitutional system. Hence, any asserted conflict between an allegedly unconstitutional federal law and this sort of state nullification provision cannot give rise to a genuine "conflict" or cognizable injury in fact for purposes of Article III.
Second, if the states have standing here, they always have standing, at every moment, in every case, to challenge any federal statute that is regulating any conduct within their borders. Why? Consider the more common scenario, where we do not have a nullification law. Indeed, imagine a state has passed no law whatsoever. Then Congress enacts a federal statute regulating a particular activity--let's say the manufacturing of medical devices, just to pick one example. The state currently has a "law" on the regulation of medical devices, and that is simply the common law of torts (or perhaps it is no regulation whatsoever). By enacting a federal regulatory scheme that regulates device manufacturers in a different way than the state does, the federal government is now interfering with the state's ability to "enforce" its own law--which may be no regulation whatsoever. The state has effectively declared (perhaps only implicitly) that there shall be no regulation of such devices manufactured or sold within its borders. The federal law is now interfering with the state's sovereign interest in regulating according to its own law, implicit or explicit. Under the logic adopted by Judges Hudson and Vinson, this would be a sufficient harm to the state's sovereignty for it to have Article III standing to challenge the federal law.
Again, this means that a state always has standing to challenge any federal law that regulates any activity in the state, so long as that federal law diverges, in some small way, from the contours of state law (which it always does). But this implication is flatly inconsistent with a number of Supreme Court decisions, which have denied states standing and demanded more in the form of their injury.
In short, Judge Hudson's and Judge Vinson's decisions on this point are simply wrong on the law.
What are the implications of this? First, I think Virginia v. Sebelius should not be the case that goes up to the Court, given this lurking vehicle problem. Indeed, Virginia's case should probably be dismissed by the Fourth Circuit. Second, I think Oklahoma may lack standing to prosecute its suit; it should probably be dismissed as well. Finally, I think Florida v. HHS should be the case the Supreme Court takes, as it combines the states as plaintiffs (for the Medicaid claim), giving the case more institutional heft, and some individual plaintiffs, who have a much stronger claim for standing to challenge the individual mandate.
If the Court somehow misses this problem, though, and grants cert in Virginia v. Sebelius because it is the earliest to get there, there could be all sorts of justiciability problems for the justices.
