State Standing to Challenge Ultra Vires Federal Action: The Health Care Cases and Beyond

Abstract

In April, 2010, the state of Virginia filed a lawsuit to challenge the constitutionality of the Patient Protection and Affordable Care Act (PPACA). What distinguished Virginia’s case from the many others challenging PPACA was that Virginia challenging the constitutionality of the Individual Mandate provision of PPACA on its own behalf, and not on behalf of an individual. That state had recently passed the Virginia Health Care Freedom Act (VHCFA), a statute declaring no person could be forced to buy health insurance against her will. Virginia filed a complaint seeking declaratory relief to determine whether the VHCFA was preempted by the federal law. The Fourth Circuit Court of Appeals concluded that the state lacked standing to sue and ordered the case dismissed. The court concluded that the state was not seeking to vindicate a right of its own, but was trying to bring a parens patriae lawsuit forbidden by the precedent of Massachusetts v. Mellon.

In this article, I contend that the Court of Appeals was wrong. States should have the right to defend the sovereign authority reserved to them in the Tenth Amendment — which authority includes not only the power to regulate individuals and to operate state programs, but also the authority to articulate and defend individual rights, at least where protection of those rights is not confined exclusively to federal jurisdiction. Allowing states to sue in such circumstances would not, as the Fourth Circuit feared, cause a flood of lawsuits, but would empower states to play the role the founders intended them to play: as a counterweight against federal overreaching. Indeed, that was precisely the route taken by Maryland in McCulloch v. Maryland, which set the pattern for the type of lawsuit Virginia brought. I argue that McCulloch rightly recognized that states may defend their authority to protect individual rights and that to the extent that Mellon bars the states from acting as defenders of their citizens, that decision should be reexamined.