INTRODUCTION I. VIRGINIA V. SEBELIUS: VIRGINIA'S CLAIM OF SOVEREIGN INJURY II. REFEREEING DISPUTES BETWEEN CO-SOVEREIGNS: THE HISTORICAL ROLE OF THE FEDERAL COURTS III. STATE SOVEREIGN STANDING: MASSACHUSETTS V. MELLON AND THE MODERN STATE STANDING CASES A. State Sovereign Standing Before Massachusetts v. Mellon B. Massachusetts v. Mellon C. State Sovereign Standing After Massachusetts v. Mellon: The Recognition of State Sovereign Standing in the Supreme Court and in the Circuit Courts of Appeals 1. The Supreme Court 2. The courts' of appeals IV. STATE SOVEREIGN STANDING IN VIRGINIA V. SEBELIUS V. A BRIEF REPLY TO PROFESSOR WALSH AND OTHERS A. Professor Walsh B. Professors of Federal Jurisdiction CONCLUSION INTRODUCTION
Much of the analysis and commentary regarding the various suits challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA), including Virginia's suit in Virginia ex rel. Cuccinelli v. Sebelius, have focused on the merits. (1) This is not surprising because, for both lay and legal audiences, the issue of exactly what, if any, limits remain on the powers of the federal government implicates an essential question regarding the nature of the American polity. Will the New Deal revolution now be read as having progressed to the point that we must forever abandon the civics lessons of our childhood that taught that the federal government was one of limited and enumerated powers?
However, procedural questions have also been raised, and, in many ways, these seemingly technical matters are as important in defining the limits on federal power as the underlying merits of the PPACA challenges. In the case of Virginia's challenge to PPACA, the most important procedural question is whether a state has standing to assert that, in attempting to override a duly enacted state statute that regulates in an area traditionally thought to be within the police powers of the states, an act of Congress violates the Constitution.
Obviously, Virginia believed at the time its lawsuit was filed, and continues to believe, that under both historical principles and modern standing doctrine, it had and has standing to bring its challenge to PPACA. Many in academia have disagreed with Virginia's position both in public comments and in amicus briefs filed in the Virginia case. On September 8, 2011, a panel of the United States Court of Appeals for the Fourth Circuit found that Virginia lacked standing to pursue its claim. (2) The purpose of this Article is to set forth in detail the reasons why Virginia does have standing to pursue its challenge to PPACA and to explain why those who question Virginia's standing are fundamentally incorrect.
In Part I of the Article, we briefly discuss the gravamen of Virginia's challenge and how it raises the issue of state sovereign standing. In Part II, we discuss the historical role of the federal courts in refereeing disputes between the federal government and the states over which sovereign has the right to act in a particular situation or area. In Part III, we examine the history of state sovereign standing, the case of Massachusetts v. Mellon, its role in the development of modern standing doctrine, how it is being misread by those who would deny Virginia's claim to standing, and how the Supreme Court and the Courts of Appeals have dealt with state sovereign standing after Massachusetts v. Mellon. In Part IV, we consider how the issue of state sovereign standing has been addressed in Virginia v. Sebelius and in the challenges to PPACA brought by other states. In Part V, we respond directly to the arguments raised by various academics regarding Virginia's claim to standing in Virginia v. Sebelius. In the Conclusion, we summarize the importance to our federal system of recognizing that states serve as a significant counterbalance to federal power and that, both historically and under modern standing doctrine, states have both the responsibility and the ability to defend their sovereign enactments against federal overreach.
VIRGINIA V. SEBEL1US: VIRGINIA'S CLAIM OF SOVEREIGN INJURY
To understand Virginia's entitlement to sovereign standing in Virginia v. Sebelius, one must first understand the injury Virginia claims to have suffered. Unfortunately, in the popular press, the academic literature, and the present litigation, Virginia's claimed injury has been either misunderstood or intentionally mischaracterized as everything from nullification (3) to a disguised parens patriae claim on behalf of Virginia's citizens. (4) In reality, Virginia's claim is a classic example of a state simply defending its code of laws, which is one of the hallmarks of sovereignty. (5)
In 2010, the Virginia General Assembly enacted with the Governor's approval the Virginia Health Care Freedom Act (HCFA). The HCFA provides:
No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where an individual is named a party in a judicial or administrative proceeding. No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage. This section shall not apply to individuals voluntarily applying for coverage under a state-administered program pursuant to Title XIX or Title XXI of the Social Security Act. This section shall not apply to students being required by an institution of higher education to obtain and maintain health insurance as a condition of enrollment. Nothing herein shall impair the rights of persons to privately, contract for health insurance for family members or former family members. (6) Although various bills were introduced by various legislators and amended by the Governor, the language of the bills was eventually reconciled. The version that was first enacted, Senate Bill 417, passed the Virginia House of Delegates by a margin of 90-3 and passed the Virginia Senate by a vote of 25-15. (7) Support for the HCFA crossed party lines; at the time of passage of the HCFA, the Virginia House of Delegates contained 59 Republicans, 39 Democrats and 2 Independents, while the Virginia Senate contained 22 Democrats and 18 Republicans.
Because Senate Bill 417 had been previously amended by the Governor, it became law without his signature when the House of Delegates adopted the Governor's amendment on March 10, 2010. (8) Thus, the HCFA was enacted nearly two weeks before President Obama signed PPACA, (9) and would have been the law of Virginia even if Congress had never passed health care "reform."
However, the Congress did pass PPACA and the President signed it, bringing the new federal enactment into conflict with the HCFA. As Virginia stated in its complaint in Virginia v. Sebelius, "The collision between the state and federal schemes also creates an immediate, actual controversy involving antagonistic assertions of right." (10) In short, PPACA requires citizens, with certain, limited exceptions, to purchase health insurance, while the HCFA establishes that, with certain, limited exceptions, no Virginian can be required by any person or entity to purchase health insurance. (11) Accordingly, it is impossible for the laws to operate at the same time.
Because of this, Virginia filed suit on March 23, 2010, in the United States District Court for the Eastern District of Virginia seeking a declaration that PPACA was unconstitutional and seeking to enjoin its operation. (12) That the Attorney General of Virginia would bring a suit to defend the validity of a Virginia statute from a claim of federal preemption should not have been at all surprising. As the district court would later hold, "The mere existence of the [HCFA] is sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it." (13) In fact, the district court went on to note that the responsibility of the attorney general of a state to bring such a suit finds support in the Federal Rules of Civil Procedure. (14)
Given the inherent conflict in the statutory schemes, one of the enactments must yield. If PPACA is a valid exercise of Congress's enumerated powers, it preempts the HCFA under the Supremacy Clause. On the other hand, if PPACA exceeds Congress's enumerated powers, the HCFA is a valid exercise of the police powers reserved to the states under the Tenth Amendment. (15)
Because it is the federal government's position that PPACA effectively invalidates the HCFA, the federal enactment is a direct attack on Virginia's sovereignty. As the Supreme Court has emphasized, "'the power to create and enforce a legal code, both civil and criminal' is one of the quintessential functions of a State." (16) While PPACA may cause other types of injuries to persons and businesses, its purported invalidation of the HCFA injures Virginia qua Virginia because it invades one of Virginia's sovereign functions. It is this sovereign injury that Virginia alleged in Virginia v. Sebelius, and it is this sovereign injury for which Virginia seeks redress. (17) As will be discussed in greater detail below, this injury to Virginia's sovereignty is real, and similar sovereign injuries, at least historically, have been found to be more than sufficient to support a state's claim of Article III standing.
Because of the inherent conflict in the two statutory schemes and the insult to Virginia's sovereignty, the questions became how the conflict could and should be resolved and where Virginia could turn for redress of its sovereign injury.
The federal courts are the obvious and, in fact, the only answer. Pursuant to...