May 1, 2013

Can the states sue the federal government for exceeding its constitutional authority?

By Can the states sue the federal government for exceeding its constitutional authority?

According to the Fourth Circuit Court of Appeals, the answer is no. Last year, that court dismissed Virginia’s lawsuit challenging Obamacare, on the grounds that the state had no interest in the lawsuit above and beyond the interests of its citizens, and states aren’t allowed to sue just on behalf of their citizens. States can only sue if they have some unique interest as states.

In the latest issue of the University of Florida Journal of Law & Public Policy, I argue otherwise. I contend that states should have the right to sue the federal government for exceeding its constitutional boundaries if in doing so, it conflicts with a state law, such as the Health Care Freedom Act. After all, states already have the right to challenge federal laws that contradict state laws on a variety of other subjects. If the federal government says that states can’t regulate hunting or fishing within their boundaries, for example, the states can sue because the federal government is interfering with the state’s constitutionally reserved sovereignty. The Fourth Circuit acknowledged that, but said that that rule didn’t apply because the Health Care Freedom Act didn’t regulate individual action or run a state program. But as I contend in my article, states aren’t just limited to regulating individual action or running state programs. They also have the authority (reserved by the Tenth Amendment) to articulate and enforce individual rights, which is what the Health Care Freedom Act did. And that means that they should have the power to intervene to defend their own interest as states to protect their citizens.

After all, that’s basically what happened in McCulloch v. Maryland, one of the central decisions in American constitutional law…which the Fourth Circuit completely ignored.

You can download the published version of my article from SSRN.

What to read next