Who’s Afraid of the Virginia Challenge to Healthcare Reform?
On Monday, a federal judge ruled that Virginia’s constitutional challenge to the Affordable Care Act’s individual-mandate provisions could go forward, denying the Administration’s motion to dismiss. Probably the most important thing to bear in mind about the ruling is that it was only preliminary—not a final, definitive victory for either side.
The opinion (pdf), issued by Judge Henry Hudson of the Eastern District of Virginia, dealt primarily with issues of justiciability: standing, ripeness, and statutory jurisdictional restrictions under the Anti-Injunction Act. Each of those issues were resolved in Virginia’s favor, though not always convincingly. They will certainly be revisited on appeal. The ruling also touched on the merits of the case but left their resolution to a later date. (For a more detailed review of the opinion, see this post by Jack Balkin.)
Two key ideas undergird Monday’s decision. The first is that a state should be accorded special access to federal court when challenging the constitutionality of a federal law that conflicts with state law. And the second is that the ACA’s individual mandate is unlike anything else in federal law and raises novel constitutional issues which cannot be definitively resolved by precedent.
I can’t say I strongly disagree with either of those propositions, even though I believe the mandate should ultimately be found constitutional. But nevertheless there are signs of trouble ahead. As Professor Balkin writes, Judge Hudson clearly “tipped his hand [as sympathizing with the challengers] in the way he describes the case,” framing the issue as whether the federal government can force individuals to participate in commerce and collapsing the taxing power argument into the commerce power argument.
Also, though again I’m not too troubled by the result, the court’s analysis of standing seems somewhat muddled. States aren’t generally granted standing to sue the federal government on behalf of their citizens, but must have their own “sovereign interests” at stake. Now, Judge Hudson found that the ACA’s individual mandate was in conflict with a “core sovereign power” of the state: its legislative authority as exercised through the enactment of the Virginia Health Care Freedom Act, which declares that no citizen of Virginia will be subject to any mandate to buy insurance. Judge Hudson deemed this conflict between the Virginia VHCFA and the federal ACA sufficient to establish standing.
OK, so what’s wrong with that? Well, maybe nothing’s wrong with it. But there certainly is something fishy going on in there. Here’s Brad Joondeph at the aca litigation blog:
States arguably should have standing to sue the federal government to determine whether a state law is preempted in particular circumstances–specifically, when the existence of the federal law jeopardizes the legality of the actual or imminent enforcement of a state law. For instance, if California makes it unlawful to generate a certain level of greenhouse gases, and a federal law arguably preempts the state law, the state plausibly is entitled to seek declaratory relief to determine whether the enforcement of the state law is permissible (i.e., not preempted), at least when the state is actually committing (or about to commit) significant resources to its state-level enforcement regime.
Here, though, there is no sincere (or realistic) desire by Virginia to “enforce” anything. (The ACA may be forcing Virginia to carry out certain actions already related to Medicaid, but those actions are wholly unrelated to the minimum coverage requirement of ACA 1501 that the Commonwealth is challenging.) Virginia’s law, as a transparent attempt to nullify a federal statute, was legally invalid at its inception. It purports to direct the federal government on how it can regulate the citizens of Virginia. This is constitutionally inadmissible. Or at least it has been since 1865.
(Emphasis added.) This seems to me the central argumentative ploy of Judge Hudson’s opinion: opportunistic muddling. The opinion conflates implementation of the ACA’s Medicaid and insurance-regulation reforms with implementation of the mandate—even though the state has absolutely no role in the latter. It conflates Virginia’s “sovereign” interests with the interests of its citizens. It conflates a single, declaratory enactment of the Virginia legislature with the full breadth of state “sovereign” powers. It conflates the mandate’s minimum coverage requirements with its penalty. And it conflates the scope of the commerce power with that of the taxing power.
For the most part, all that muddling and conflation is achieved obliquely—e.g., through a suggestive quotation from plaintiff’s counsel. And though I’m not worried about the mandate’s long-term prospects, I’d be a lot more comfortable for now if Judge Henry Hudson didn’t seem so comfortable with the arguments of the mandate’s opponents.
Comments
2 Responses to “Who’s Afraid of the Virginia Challenge to Healthcare Reform?”
Leave a Reply
About Me
- I write this blog.
-
My twitter feed:
[...] about Virginia’s ACA challenge. Then my brain started to hurt (law is not for me). So I asked Jim Hufford what he thought. In short, he thinks the ruling to allow the challenge to go forward is a muddle of [...]
[...] be more discriminating than the district court, and will separate out the issues that Judge Hudson conflated in his opinion. It will find no current or imminent injury to the state’s interest. It will [...]