If the states cannot be co-opted into expansions of programs the states already have adopted, it stands to reason that states should at least have the standing to challenge federal laws that directly contradict.

Tweet

The extent of the damage from bad decisions can sometimes extend beyond the original, obvious victims. Such was the case in the wake of Chief Justice John Roberts’ supremely ill-considered decision allowing ObamaCare to be implemented as a “tax.”

Lost in the shuffle, after the decision in NFIB v. Sebelius, was the Supreme Court’s subsequent failure to protect state sovereignty from the ravages of a renegade court. While the authority of individual states did not suffer broad or permanent damage, the principle of federalism did take another unfortunate blow.

The suit against ObamaCare’s individual mandate by NFIB (and 26 states) was only one of several pending challenges to Mr. Obama’s grossly unpopular health-care scheme. The day after Roberts issued his controlling decision in that case, it “denied certiorari” to (refused to accept the appeals from) every one of those other cases that had already made it through U.S. courts of appeal. Because those other cases were concerned primarily with the mandate, the Supreme Court presumably considered them all effectively mooted by the NFIB decision. With the central issue of the mandate/tax resolved, there seemed no good reason to let those other cases proceed (even if several satellite issues differed in a few of the cases).

One case, however, presented another immediate question. This was Virginia v. Sebelius – the one brought by Virginia Attorney General Ken Cuccinelli which was the very first case to earn a federal court ruling against the mandate. A panel of the U.S. Fourth Circuit Court of Appeals had sidelined Cuccinelli’s suit on the curious grounds that the state of Virginia did not have legal “standing” to bring the suit in the first place.

Virginia had sued specifically to protect its own state law that said no entity – federal, local or private – could require individual Virginians to purchase health insurance. The Fourth Circuit ruled, bizarrely, that the state itself had suffered no appreciable legal injury by having its law effectively superseded by ObamaCare. The three-judge panel mischaracterized Virginia’s law as a mere attempt to “nullify” the federal statute – completely ignoring the broader scope of Virginia’s prohibition not just against federal mandates but also against those from local governments or private employers.

By denying Virginia’s “standing,” the appeals panel completely avoided the central issue of the federal mandate itself. It was this denial of standing – a key issue in itself – which Cuccinelli had appealed to the Supreme Court.

Even acknowledging that a restoration of Virginia’s standing would merely have reinstituted a case that then itself would have been controlled in almost all respects by Roberts’ NFIB decision – meaning that Virginia’s law still almost certainly would have been invalidated – it still is a major shame that the Fourth Circuit’s “standing” decision wasn’t considered and overturned. At issue is the very nature of our nation’s crucial division of governmental authority that reserves many powers to people in their state and local capacities.

Cuccinelli, joined by Virginia’ solicitor general Duncan Getchell and deputy attorney general Wesley Russell, wrote a piece for the January 2012 Stanford Law Review that explained the issue’s importance.  They noted that as recently as the 2011 case of Bond v. U.S., “The [Supreme] Court explained that the retention of sovereignty by the states serves the purpose of furthering individual liberty, recognizing that the sovereignty of states ‘is not just an end in itself’ but that structural federalism ‘secures to citizens the liberties that derive from the diffusion of sovereign power’ and ‘secures the freedom of the individual.’”

If a state cannot even defend its own law, in federal court, from national-government encroachment, then the liberties of its citizens protected in Bond could be seriously undermined. This is not a matter of letting states override the national government; it is a matter of making sure that states have recourse to a formally neutral arbiter to protect against centralizations of power that the Constitution itself forbids.

“The states were never intended to be mere provinces or administrative arms of the federal government,” wrote the three authors of the law review article. Indeed, that is precisely what seven of nine high court justices decided in the other part of the NFIB case, the part that threw out penalties against states that choose not to expand their Medicaid programs. If the states cannot be co-opted into expansions of programs the states already have adopted, it stands to reason that states should at least have the standing to challenge federal laws that directly contradict.

If the Supreme Court had agreed to review the standing issue, Cuccinelli told me, it “could have given unequivocal guidance to the states that they do have the authority to sue the federal government over Tenth Amendment issues.”

Otherwise, the federal government can be an untamed behemoth, trampling everything that gets in its way.