Putting the States Back in Their Place

By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School; and Co-Editor, Constitutional Law Prof Blog

With all the talk these days about state sovereignty, “states’ rights,” and the importance of protecting the traditional roles of the states, you might think that states reign supreme in our federal system. You might think that the mighty states are designed with a singular purpose to protect us from a dangerously encroaching federal government. (You might even forget that it was We the People, and not the states, who formed the federal government in the first place.) And you might think that states have a sovereign right, even a duty, to file suit in federal court to head off and to nullify an out-of-control federal government on our behalf. 

With all the talk these days, you might think these things. But then you’d be wrong.

We got a healthy reminder of that in the form of a terse and pointed opinion this week by Judge Motz for a unanimous three-judge panel of the Fourth Circuit. The court rejected the Commonwealth of Virginia’s effort to sue in federal court to overturn the individual health insurance mandate in the Affordable Care Act. In particular, it rejected the Commonwealth’s transparent attempt to concoct a federal claim where there was none.  In so doing, it set right the relationship between the states and the federal government, their proper roles in relation to their citizens, and the job of the courts in preserving our federal system.  In short, it put the Commonwealth back in its place.

The case, Virginia v. Sebelius, was based on the Virginia Health Care Freedom Act, which says that “[n]o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage.” The Commonwealth claimed that it enacted the VHCFA in order to protect its citizens from the overreaching individual health insurance mandate in the ACA.  In truth, the Act was only a naked effort to manufacture standing for the Commonwealth (and really just the state attorney general) to sue the federal government in federal court -- the AG’s way to air and to legitimize his political objections to the individual mandate under the guise of a constitutional complaint. Thus the Commonwealth argued that the ACA’s individual mandate ran right up against its own VHCFA, creating a concrete and particularized injury that would satisfy the standing requirements of Article III.

But this theory of standing would turn our federal system on its head. It would mean that any state could simply enact declaratory legislation opposing any federal law in order to get the federal courts to rule on its constitutionality. It would mean that states would be the guardians of their citizens against the federal government in federal court. And it would mean that states could call on federal courts to issue pre-enforcement advisory opinions on the constitutionality of federal law. According to the Commonwealth’s theory of standing, federal courts would be little more than a vehicle for states’ righteous nullification efforts.

The Fourth Circuit rightly rejected this activist theory in sharp and certain terms. Judge Motz wrote for the panel that the ACA didn’t conflict with the VHCFA, because the VHCFA was merely declaratory, not something that the Commonwealth could enforce in any meaningful way. (Remember that the individual mandate works on individuals, not states. And remember that the federal Constitution has a Supremacy Clause, rendering the VHCFA an empty shell in the face of the ACA.) Because the VHCFA is unenforceable, the ACA can’t conflict with it; and the Commonwealth can show no injury to itself. 

Moreover, Judge Motz wrote that it’s not the Commonwealth’s place to protect its citizens against the federal government. “With respect to the federal government’s relationship to individual citizens, ‘it is the United States, and not the state, which represents [citizens] as parents patriae.’”  Virginia v. Sebelius, at 22-23 (quoting Massachusetts v. Melon, 262 U.S. 447, 485-86 (1923)). The Commonwealth’s theory would “usurp this sovereign prerogative of the federal government and threaten[] the ‘general supremacy of federal law.’”  Virginia v. Sebelius, at 23 (quoting Pennsylvania v. Kleppe, 533 F.3d 668, 677 (D.C. Cir. 1976)). 

Finally, Judge Motz wrote that it’s not the role of the federal courts to decide the kind of “abstract questions of political power, of sovereignty, of government” that the Commonwealth raised.  Virginia v. Sebelius, at 29 (quoting Massachusetts v. Melon, 262 U.S. 447, 485 (1923)). These questions are for ordinary politics.

And indeed, that’s where the Commonwealth’s complaint belongs -- in the realm of ordinary politics. This case was always just an activist effort to legitimize an ordinary political dispute by bringing a constitutional claim in federal court. This is not merely misguided; it’s dangerous. The Commonwealth -- and others toying so cavalierly with novel theories of state sovereignty, “states’ rights,” and preserving the traditional roles of the states -- raise their claims for short-term political gain. But if these theories become constitutional law, they will upset the traditional and delicate balance in our federal system, with serious long-term consequences. (Here’s just one that should worry states’-righters: When the politics change -- when today’s “states’ rights” activists see their political advantage on the federal stage -- they will find that the “states’ rights” bed that they made for themselves very uncomfortable indeed.)

The Fourth Circuit was right to see through the Commonwealth’s gambit and to put the states back in their place.