A good friend of mine often contends that we would have been a lot better off if the Confederacy had won the Civil War, grouping that whole swath of states south of the Mason-Dixon line into their own little country. Perhaps. But, it also seems like actual elected leaders of the country pine for the days when secession was an option--and, these days, it's over that really radical idea that everyone should have health care.
Making that point in her usual brilliant legal analysis is Linda Greenhouse, who was The New York Times Supreme Court superb reporter for many years. You really have to make it a habit to read her blog column at The Times--it's hard to find anywhere else this kind of unconventional, legal writing for the layperson that is really damn interesting.
Greenhouse looks at the recent decision by a federal appeals court to throw out Virginia's challenge to the Patient Protection and Affordable Care Act, which we know as the health care bill. The point she makes, in her column appropriately titled "Breaking News: The Civil War Is Over", has nothing to do with whether the Act is a good thing or not. It's the fact that the state of Virginia even brought the challenge--and on what grounds
You see, the state's Republicans had a problem. They hated this bill passionately but they had no standing to sue. Aha!:
On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act and Virginia’s attorney general, Kenneth T. Cuccinelli II, filed suit in federal court to have the law declared unconstitutional. The next day, Gov. Bob McDonnell signed into law the Virginia Health Care Freedom Act. These last two events were inextricably linked.
The Virginia law provides that “no resident of this Commonwealth… shall be required to obtain or maintain a policy of individual insurance coverage. . . ”
In other words, a few weeks shy of the 150th anniversary of Virginia’s “ordinance of secession,” the Commonwealth of Virginia seceded from the reach of the federal health care law’s individual mandate.[emphasis added]
You see, McDonnell had to simply make up a reason to give him standing to sue:
The individual mandate, as such, imposes no obligation on the states. Neither vague mumbling about sovereign interests nor resentment about being told what to do by Washington is sufficient to get the states through the door – or didn’t use to be sufficient. So Virginia, whose governor was one of the first graduates of the evangelist Pat Robertson’s Regent University Law School, attempted by its declaration of health care freedom to inoculate itself against being thrown out of court.[emphasis added]
After first passing muster with a lone federal judge, the challenge went before an appeals court. The appeals court did a really wacky thing. Uh, it said, "well, you know you are part of the United States of America...". Actually:
Not so fast, said Judge Diana Gribbon Motz for the Fourth Circuit panel, which also included Judges James A. Wynn Jr. and Andre M. Davis. “A state possesses no legitimate interest in protecting its citizens from the government of the United States,” Judge Motz wrote. (Should a federal judge really have to say such a thing in 2011?) “Contrary to Virginia’s arguments, the mere existence of a state law like the VHCFA does not license a state to mount a judicial challenge to any federal statute with which the state law assertedly conflicts.” The Virginia law was not an exercise of “sovereign power,” she continued, “for Virginia lacks the sovereign authority to nullify federal law.”
Judge Motz noted that under Virginia’s theory, “a state could acquire standing to challenge any federal law merely by enacting a statute – even an utterly unenforceable one – purporting to prohibit the application of the federal law.” Under its theory, Virginia could get into court to defend a law providing that “no Virginia resident shall be required to pay Social Security taxes,” Judge Motz observed, adding: “Thus, if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court.”[emphasis added]
Unfortunately, to Greenhouse's own biting question, "Should a federal judge really have to say such a thing in 2011?" the answer is, sadly, yes.
There is so much that is ironic here. How about the avowed assault by Republicans against those ugly trial lawyers for filling the courts with "frivolous" or "expensive" lawsuits (the lion's share of which are aimed at corporate abuse of regular people) counter-posed with an elected governor marching into a courthouse to foul up the courts with a lawsuit based on a piece of legislation that is, as Greenhouse says, secessionist in nature? Gah.
Of course, the appeals court decision rests on decades of precedent, leading Greenhouse to observe:
We’ll see how much respect these precedents command on the current Supreme Court.
And there is, perhaps, the end point. We live in an era of legal hypocrisy and mendacity. Elected leaders, who don't like legislation they can't stop, come up with legal mumbo-jumbo--learned at institutions run in the spirit of snake-oil evangelists--that, effectively, is unpatriotic: this legal case, as Greenhouse says, rejects the notion of a UNITED STATES and the power of a president who is elected and a UNITED STATES CONGRESS that represents, with all its flaws, the interests of all the people.
Though, I suppose, in a nation where a state kills an innocent man, attempts at legal insurrection seem pretty mild.