States' Rights and State Standing

Abstract

In this symposium essay, I revisit Virginia's challenge to the constitutionality of the minimum essential coverage provision of the Patient Protection and Affordable Care Act of 2010 ("ACA”) through the lens of Alex Bickel's vehement constitutional and policy-oriented objections to the Supreme Court's analysis of state standing in South Carolina v. Katzenbach, which he published in a 1966 essay in the Supreme Court Review.

As this essay explains, for a deceptively simple reason (and one by which the Supreme Court has consistently abided), Bickel's critique of South Carolina was right in theory but wrong in practice: although states may not generally challenge the constitutionality of federal regulation on behalf of their citizens, there are a handful of constitutional provisions under which the federal government operates on the states qua states, and not merely as a proxy for their citizens. However one describes the states' “interests” in such cases, those circumstances are qualitatively different from cases in which the states are merely aggregating their citizens' objections to federal legislation and suing on their behalf.

Thus, when a state truly is the federal stakeholder against the federal government whether by virtue of the Constitution itself or a federal statute, state standing is not just appropriate, but necessary; thanks to the Court's modern standing jurisprudence, there may be cases in which no private party would otherwise be able to maintain the same lawsuit. In contrast, when the state possesses no federal interest distinct from its citizens, allowing state standing in suits against the federal government would implicate all of the concerns Bickel cogently articulated in 1966.

So understood, the Fourth Circuit's rejection of Virginia's standing to challenge the constitutionality of the ACA in Virginia ex rel. Cuccinelli v. Sebelius is not just faithful to precedent, but consistent with precisely this distinction. Whatever else one may think about Congress's power to require private citizens to purchase health insurance, it is difficult to see the argument that the minimum essential coverage provision interferes with a federal interest specifically possessed by the states qua states. To be sure, Virginia attempted to manufacture such a claim by enacting a state law that expressly conflicted with the ACA. But if Bickel's thesis is correct, preemption of a state's law by the contested federal law cannot of itself provide the basis for state standing against the federal government -- or else we very well might see the “mockery” of which Bickel warned.

Keywords: ACA, healthcare, NFIB, standing, state standing, sovereign interests, Bickel, Cuccinelli