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Breaking News: The Civil War Is Over—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on September 21, 2011.

Breaking News: The Civil War Is Over
By Linda Greenhouse ’78 MSL

Judicial opinions on the constitutionality of the new health care law are pouring out of the federal courts. With the general expectation that the Supreme Court will have to resolve what is now a clear conflict between two federal courts of appeals, the individual lower-court decisions have pretty much ceased to make news. By the time the Supreme Court rules, if and when it does, a decision earlier this month by the federal appeals court in Richmond, Va., throwing out Virginia’s challenge to the statute without reaching the ultimate constitutional question, will be all but forgotten.

That would be unfortunate, because in its relatively brief 33 pages, this opinion from a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, sitting in the heart of the old Confederacy, offers a powerful reminder of a fact that a dismaying number of folks appear lately to have forgotten: the Civil War is over.

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act and Virginia’s attorney general, Kenneth T. Cuccinelli II, filed suit in federal court to have the law declared unconstitutional. The next day, Gov. Bob McDonnell signed into law the Virginia Health Care Freedom Act. These last two events were inextricably linked.

The Virginia law provides that “no resident of this Commonwealth… shall be required to obtain or maintain a policy of individual insurance coverage. . . ”

In other words, a few weeks shy of the 150th anniversary of Virginia’s “ordinance of secession,” the Commonwealth of Virginia seceded from the reach of the federal health care law’s individual mandate.

True, the Virginia Health Care Freedom Act contains no enforcement mechanism. Nor is there any prospect that the federal government, once the requirement to buy health insurance takes effect in 2014, would pay the state law the slightest attention. But that was never the point. The purpose of the Virginia law – in addition to permitting the state’s public officials to strike a high-minded tone while pandering for votes – was to give Virginia something that it and the two dozen other Republican-run states challenging the federal law manifestly lack: standing to sue, the right to be in court in the first place.

Although the courts that have struck down the law have glossed over the point – oddly enough, given that conservative judges are usually obsessively attentive to the doctrines of standing, ripeness, and other barriers to entry to federal court – the state plaintiffs can’t meet the basic requirement of standing: a concrete, immediate “injury in fact,” caused by the action that is being complained about. The individual mandate, as such, imposes no obligation on the states. Neither vague mumbling about sovereign interests nor resentment about being told what to do by Washington is sufficient to get the states through the door – or didn’t use to be sufficient. So Virginia, whose governor was one of the first graduates of the evangelist Pat Robertson’s Regent University Law School, attempted by its declaration of health care freedom to inoculate itself against being thrown out of court. “The collision between the state and federal schemes,” the state’s legal complaint asserted, “creates an immediate, actual controversy involving antagonistic assertions of right.”

A federal district judge, Henry E. Hudson, agreed with the state in August of last year, refusing to dismiss the case and allowing the lawsuit to proceed (his eventual opinion, issued last December, surprised no one by declaring the individual mandate unconstitutional.) Explaining why the Virginia Health Care Freedom Act gave the state standing to sue, Judge Hudson said: “The mere existence of the lawfully-enacted statute is sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it.”

Not so fast, said Judge Diana Gribbon Motz for the Fourth Circuit panel, which also included Judges James A. Wynn Jr. and Andre M. Davis. “A state possesses no legitimate interest in protecting its citizens from the government of the United States,” Judge Motz wrote. (Should a federal judge really have to say such a thing in 2011?) “Contrary to Virginia’s arguments, the mere existence of a state law like the VHCFA does not license a state to mount a judicial challenge to any federal statute with which the state law assertedly conflicts.” The Virginia law was not an exercise of “sovereign power,” she continued, “for Virginia lacks the sovereign authority to nullify federal law.”

Judge Motz noted that under Virginia’s theory, “a state could acquire standing to challenge any federal law merely by enacting a statute – even an utterly unenforceable one – purporting to prohibit the application of the federal law.” Under its theory, Virginia could get into court to defend a law providing that “no Virginia resident shall be required to pay Social Security taxes,” Judge Motz observed, adding: “Thus, if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court.”

In support of the panel’s conclusion, Judge Motz cited Supreme Court opinions on standing by a trio of conservative justices: Chief Justices Warren E. Burger and William H. Rehnquist (as an associate justice) along with Justice Antonin Scalia. We’ll see how much respect these precedents command on the current Supreme Court.

Of course, even throwing out all the state plaintiffs wouldn’t make the health care litigation go away. A number of the lawsuits have private individuals or organizations as plaintiffs, with their own imaginative claims to standing. A Pennsylvania couple, Barbara Goudy-Bachman and Gregory Bachman, succeeded last week in persuading a federal district judge, Christopher C. Conner of Harrisburg, to strike down the individual mandate; their legal complaint described the federal law as an example of “tyranny in the modern era” that threatened to turn Americans into “mere economic slaves of congressional will.” Their claim to standing was that they don’t now have health insurance for themselves or their children and don’t want to have to get any. The judge found that the individual mandate was unconstitutional, beyond Congress’s authority under the Commerce Clause.

I have a confession to make. I can describe the legal arguments and the judicial conclusions, but on a fundamental level, I just don’t get the attack on the federal law. I don’t understand people who voluntarily, without claiming poverty, let their children go uninsured. I don’t understand the moral compass of the owner of the fancy car I saw the other day that sported the bumper sticker: “Repeal Obamacare.” I suppose that the self-satisfied and oh-so-secure car owner never met anyone like the healthy27-year-old man profiled the other day in USA Today who was denied insurance in the private market because his doctor four years ago had ordered a particular heart-monitoring test – which found nothing wrong with his heart. I do know such people. So do you. They are all around you, but maybe such an intimate subject as their inability to get health insurance has never come up in conversation. So as this debate for the soul of the country continues to unfold, I take comfort – perhaps unduly, no doubt prematurely — from the reminder from the appeals court in Richmond that the Civil War is over and that p.s., the Union won.