April 4, 2011

More on state standing in the Obamacare appeal

By More on state standing in the Obamacare appeal

Author: Timothy Sandefur

Prof. Steven Vladek has posted some thoughts in response to PLF’s brief in the Virginia Obamacare case. Prof. Vladek was one of the authors of the brief which PLF’s opposes, on the question of whether Virginia has the necessary standing to sue.

I think Prof. Vladek is right that our disagreement basically centers around whether “states suffer their own freestanding Tenth Amendment injury whenever Congress passes a statute in excess of its enumerated powers.” That may be an extreme way of phrasing it, but it gets to one of our basic points: states have a general police power; the federal government does not. When the federal government exceeds its enumerated powers in a way that intrudes on the states’ retained authority, then the states have been injured and should be able to defend their constitutional authority in court. 

This view, we argue, is consistent with cases like New York and Dole, cases in which states were allowed to challenge federal laws that interfered with powers they retained under other constitutional provisions. If states can sue to defend their Twenty-First amendment sovereignty, they should also be allowed to defend their Tenth Amendment sovereignty.

What exactly is that sovereignty? Well, it includes at least the power to identify and protect individual rights that the Constitution doesn’t take away from state protection. Here, Virginia has acted specifically to articulate and defend an individual right that is left to state protection. Just as a state can protect its wildlife and environment, and can defend in court its authority to do so, so too it has authority to defend its people, and to defend that sovereign power in court. By exceeding its enumerated powers in a way that conflicts with the sovereign powers that the Constitution explicitly reserves to states, the federal government has intruded on Virginia’s constitutionally recognized sovereign authority and the state should be free to defend its power in court.

The italicized phrase above indicates how this case is different from one in which a state just asserts some kind of generalized political grievance, as in the Sargent and Mellon cases. As we explain in the brief, those cases were rightly dismissed because the states in those cases had not employed their sovereign authority, and therefore hadn’t actually been harmed. Thus the Court couldn’t determine whether the federal laws in those cases were constitutional. It’s true that Mellon is sometimes hastily read as a per se bar on states suing the federal government for interfering with their powers, but as Prof. David Currie explained, and as the Supreme Court acknowledged in Baker v. Carr, the Mellon case is better seen as a political question decision than a standing decision. That is the answer to Prof. Vladek’s question about whether every ultra vires federal law would entitle states to sue. States should be able to sue over real intrusions on their sovereign powers, as in New York, Dole, etc., and not over non-specific political grievances as in Mellon and Sargent.

In our view, this case is much less like Mellon, and much more like the federal-state clash in McCulloch v. Maryland, the iconic case in which a state passed a law conflicting with a federal law that the state believed exceeded Congress’ power and intruded on state authority. So far as I know, nobody in American history has claimed that Maryland lacked standing to sue in that case. (And Chief Justice Marshall was not shy about dismissing cases on standing grounds!) I’d be very interested in hearing what Prof. Vladek thinks differentiates Maryland’s standing in that case from Virginia’s in this.

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