Obamacare: PLF urges Supreme Court to let Virginia defend its citizens from federal overreaching

November 02, 2011 | By TIMOTHY SANDEFUR

This morning, Pacific Legal Foundation—joined again by our friends at Americans for Free Choice in Medicine, the Center for Constitutional Jurisprudence, and our client Matt Sissel—filed this brief in the U.S. Supreme Court urging it to review Virginia’s lawsuit against the Obama Administration’s health care law. This is the second brief PLF filed this week in the Obamacare lawsuits.

As you may recall, the Fourth Circuit Court of Appeals dismissed this case a few months ago, on the grounds that the state lacked the required legal standing to file the lawsuit in the first place. The Supreme Court has often allowed states to file lawsuits to protect the sovereign power—reserved to them under the Tenth Amendment—to enact and enforce their own legal codes, and in this case, Virginia sued the federal government, arguing that the Individual Mandate contradicts the Virginia Health Care Freedom Act, a state law that guarantees citizens the right not to be forced to buy health insurance. But the Fourth Circuit threw the case out, holding that while states have in previous cases been allowed to defend their sovereign lawmaking authority, the laws in those “regulated behavior or provided for the administration of a state program,” while the Virginia Health Care Freedom Act “regulates nothing and provides for the administration of no state program.”

But as we argue in the brief, states retain a broad degree of sovereignty under the Tenth Amendment, including not just the power to regulate behavior and administer state programs, but to do other things as well—including the power to specify what rights are recognized as a matter of state law, and what rights the state will defend. In fact, this is the only legitimate basis of sovereignty recognized by American constitutional law, as the Declaration of Independence makes clear. And previous Supreme Court decisions have never limited state standing to cases involving state programs or regulations. Indeed, in McCulloch v. Maryland, the 1819 decision that will doubtless play a crucial role in the final resolution of the Obamacare lawsuits, the state of Maryland had standing to sue to defend its power to tax—a power that does not regulate people or administer programs—even though that tax, like the Virginia Health Care Freedom Act, was passed in part to challenge perceived federal overreaching! (Although we pointed this out to the Fourth Circuit, and it was discussed at the oral argument, the court paid it no attention in the decision.)

This is the ninth friend of the court brief PLF has filed in the Obamacare lawsuits—not counting our own case on behalf of Iowa resident Matt Sissel. (That case is on hold, pending the D.C. Circuit’s resolution of Seven-Sky v. Holder.) Pacific Legal Foundation has been more active than any other organization in defending the Constitution against the ACA.