Why Virginia's Challenges to the Patient Protection and Affordable Care Act Did Not Invoke Nullification

Abstract

Virginia’s challenges to the Patient Protection and Affordable Care Act ("ACA"), via its minimum essential coverage provision, or individual mandate, have drawn both criticism and praise as modern invocations of nullification. The distinct doctrine of nullification entails a legal process exceeding that of a merely litigious challenge to federal law or a vocal protest from a state legislature. Its exercise by a state purportedly renders a targeted federal law unconstitutional and thus null, void, and of no effect with-in the respective state’s borders. At nullification’s core are the premises that the Supreme Court does not have final authority to interpret the Constitution in cases and controversies arising between a state and the federal government and that an individual state, as a party to the Constitution, has ultimate authority to interpret the compact as applied to constitutional disputes arising with the federal government.

This comment’s focus is to convincingly demonstrate that neither the General Assembly’s Health Care Freedom Act nor the Commonwealth’s constitutional challenge to the minimum essential coverage provision were exercises of nullification. Part II of this comment relates a brief history of the ACA’s passage along-side the Virginia Health Care Freedom Act’s enactment and the Attorney General of Virginia Ken Cuccinelli’s suit against Secretary of Health and Human Services Kathleen Sebelius. Part III defines nullification and further explains it through the historical instances when Virginia has considered the doctrine. Part IV demonstrates that — far from nullifying the minimum essential coverage provision — Virginia has followed the course of action recommended by nullification’s earliest opponents. The Commonwealth’s actions, both in anticipation of and response to the ACA, did not invoke nullification. Rather, Virginia challenged the congressional enactment through traditionally and constitutionally accepted means, and the motives and concessions of the General Assembly and the Attorney General of Virginia, in so doing, directly countered the form and premises of nullification.

Keywords: Fourth Circuit, Virginia, Patient Protection and Affordable Care Act, Affordable Care Act, nullification, states' rights, individual mandate, minimum essential coverage provision, 5000A, Virginia ex rel. Cuccinelli v. Sebelius, Cuccinelli, Sebelius