Legal Commentary

How A State Can Create Standing To Challenge A Federal Law: Pass A Law In Conflict

By Big Tent Democrat

The absurd ruling (PDF) by Virginia federal judge Henry Hudson denying the United States' motion to dismiss the complaint filed by Virginia AG Ken Cucinelli attacking the recently enacted health care bill (specifically the individual mandate)is most notable for its reasoning for why Virginia has standing to challenge the law. Here is how Ilya Somin, who is sympathetic to the ruling, puts it:

Hudson rejected the federal government’s claim that Virginia did not have standing to challenge the mandate. Although states are generally not allowed standing to litigate the interests of their citizens, Hudson argues that Virginia has standing because the federal health care bill conflicts with a recently enacted Virginia state law, the Health Care Freedom Act. This, he argues, is enough to give Virginia standing [. . .]

If this ruling is eventually upheld (it won't be imo, if the district court decides in Virginia's favor), here is a great new vehicle for challenging federal actions - states could pass laws that expressly conflict with federal policies they don't like and then take the United States to court and challenge the constitutionality of the federal actions. See Jack Balkin. Yes, it's stupid. But it is rather useful, for it really places in stark relief what conservatives are about - reversing by judicial activism settled law regarding the power of the federal government. Yes, they want to refight not only the New Deal but the Civil War as well. A smart and effective Democratic Party would make hay from this.

Speaking for me only

Full post as published by TalkLeft on August 03, 2010 (boomark / email).