April 4, 2011

Fighting the Individual Mandate in the Fourth Circuit

By Fighting the Individual Mandate in the Fourth Circuit

Author: Timothy Sandefur

A few months ago, federal judge Henry Hudson ruled that the Obama Administration’s health care law—and specifically, the requirement that everyone buy health insurance from a private company—exceeds Congress’ constitutional authority. That case (which you can read here) is now on appeal before the Fourth Circuit Court of Appeals, and today, PLF, joined by our client Matt Sissel and our friends at Americans for Free Choice in Medicine, filed this friend of the court brief in support of the decision.

Our brief focuses on a complicated, but crucial, part of the case: whether the state of Virginia has the power to bring this lawsuit in the first place. Recently, several law professors filed briefs arguing that the state lacks authority to sue, because the state has no real interest in the case. The legal doctrine of “standing” limits who’s allowed to sue, and in a 1923 case called Massachusetts v. Mellon, the Supreme Court appeared to hold that states can’t challenge the constitutionality of federal laws that go beyond Congress’ authority and intrude on the powers reserved to the states under the Tenth Amendment. Relying on that decision, the law professors argue in their brief that states “do not suffer a freestanding legally cognizable injury whenever Congress exceeds its Article I powers,” and that “[t]he state’s interest in enforcing its legal code must necessarily give way to federal law whenever a conflict arises”—regardless of whether that federal law is constitutional or not.

In our brief, we argue that states do have standing to defend the sovereign powers that are reserved to them by the Tenth Amendment. After all, the Supreme Court has allowed states to reserve sovereign powers that are reserved by other amendments. In South Dakota v. Dole, the Court allowed the state to sue in defense of a power that was reserved under the Twenty-First Amendment, for instance. And one of the great classics of constitutional law—McCulloch v. Maryland, a case that will be central to the whole debate over Obamacare—was brought in circumstances very similar to this one. There, the state of Maryland passed a tax on the National Bank, probably for the sole purpose of allowing it to sue the federal government over a law that the state believed went beyond the constitutional boundary and intruded on constitutionally reserved state power.

It’s particularly important that states have the power to assert Tenth Amendment arguments because individual litigants probably can’t. That’s a question the Supreme Court will resolve in the coming months. If individuals can’t and states can’t—or are significantly limited in doing so—that runs the risk of annulling a central part of the federalist structure. That shouldn’t be the law, given that the framers created the federalist system on the explicit presumption that states would help check federal overreaching. And if states can’t do it in this lawful way—by bringing cases in federal courts—they’re more likely to resort to illegitimate alternatives like “nullification.”

Of course, it’s true that Massachusetts v. Mellon and a few other cases threw states out of court when they challenged the constitutionality of federal laws. But those cases are better seen not as standing cases, but as political question cases. The Court rejected those lawsuits because the states weren’t actually exercising any specific sovereign authority at the time—they were just making abstract political arguments. Courts won’t address abstract arguments like that. But in Baker v. Carr, the Supreme Court made clear that while those cases were properly dismissed as political question cases, the Court did not mean that every question about federalism—or every lawsuit brought by a state in defense of its constitutionally reserved sovereign authority—is beyond the reach of the judiciary.

States serve the most basic role of protecting individual rights. That’s what their sovereignty is for. When a state like Virginia acts to do so—by passing its Health Care Freedom Act—it is exercising power the Constitution recognizes. And it should have the power to defend that sovereignty in federal court.

This is a complex issue, of course, and it might seem at first far removed from the question of whether the Individual Mandate is constitutional. But the Constitution’s federalist structure is a machine that operates on certain principles, and ignoring those principles can damage the whole scheme. Allowing Congress to exceed its constitutionally limited powers and intrude on the powers of the states overturns the founders’ will, reduces the states to mere municipal subdivisions, and endangers the rights of all.

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