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Saturday, September 10, 2011

Automatic Standing: The American States in Federalism Cases

Unlike that of the E.U., the U.S. system of public governance is structurally biased toward  political consolidation at the expense of federalism. In fact, the bias extends to jurisprudence. This is evident in a ruling by the U.S. Court of Appeals for the Fourth Circuit on September 8, 2011 against Virginia on the 2010 federal health-insurance reform law.

According to the Wall Street Journal, at issue was “whether the federal government can require Americans to either carry health insurance or pay a fee starting in 2014.” In a unanimous opinion, a three-judge panel at the U.S. Court of Appeals for the Fourth Circuit in Richmond Virginia “found Virginia Attorney General Ken Cuccinelli lacked legal standing to bring his challenge. That threw out a ruling [in 2010] by a lower court judge who said Mr.Cuccinelli was entitled to sue and found the law’s requirement to carry insurance went beyond Congress’s powers under the U.S. Constitution. Mr. Cuccinelli, a Republican, had argued Virginia had standing because, shortly after President Barack Obama signed the health law, the state’s previous governor had signed a law saying the state’s residents shouldn’t be required to carry health insurance. But the Fourth Circuit judges found that law alone wasn’t enough to generate standing for Virginia, and the state couldn’t show it was directly burdened by the insurance requirement. ‘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,’ Judge Diana Gribbon Motz wrote. She and the other two judges were appointed by Democratic presidents.”


In her statement, Judge Motz fails to grasp one of the fundamental mechanisms of modern federalism—namely, that the two systems of government—that of the states and the federal government—check and balance each other. This is necessary because governmental sovereignty is divided up between the two systems in modern federalism. The division and the related enforcement mechanism of “check and balance” are means of protecting the citizens’ liberty at the expense of tyranny (i.e., unaccountable government action). For modern federalism to work effectively, any encroachment on the sovereignty of one system by the other must be repelled. Otherwise, even one successful encroachment by one system could snowball into such an imbalance of sovereignty between the two systems that the federalism itself is defeated and the union is either de facto dissolved or consolidated with the people’s liberty paying the ultimate price.

Accordingly, governments of republics that are members of a modern federal system of governance have standing constitutionally, as semi-sovereign members, to challenge possible encroachments by the general government. I contend that Virginia had standing in the appeal because a Congressional over-reach based on the interstate commerce clause (i.e., the enumerated power authorizing Congress to regulate the commerce between two or more states) would be at the expense of Virginia’s sovereign sphere. Moreover, it is in the interest of the federal system itself, and the U.S. Constitution, that members or branches of one of the two systems of government have standing to contest over-extensions by a member or branch of the other system because otherwise one system could come to eclipse the power of the other (i.e., consolidation or dissolution).

It could be argued that Virginia’s standing is pretty obvious given Virginia’s membership in the U.S. federal system and the fact that Congress’s encroachment would be at the expense of the polity members because the federal law would bind the Virginia government. The fact that the appeals court is itself a member of one of the branches of one of the parties may account for the judge’s refusal to find standing.

In terms of the constitutional law jurisprudence, being burdened should not be required of Virginia in order for the republic to have standing; merely having an interest in terms of its sovereignty should be sufficient. Such an interest is triggered by a possible encroachment by Congress beyond its enumerated powers because the Virginia government would not otherwise be confined in its legislative, executive or judicial actions. Above all, it is in the interest of the federal system itself, and thus the United States, that both systems of government within the system have standing to contest any and all possible encroachments. Perhaps if the state governments’ standing were recognized where it is possible that Congress, the president or a federal court has unduly constricted the states’ semi-sovereign situs in the federal constitutional order, the U.S. system of public governance would be closer to federalism rather than consolidation. Given the extent of the latter, it would not be a bad thing to have each state “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.” Perhaps then a balance of power—and of the respective sovereignties—which is necessary for a modern federal system (i.e., not confederalism, such as in an alliance), would be within reach; the check and balance between governments that exists in viable federalism could once again function (if it ever did in the American context).


Janet Adamy, “Court Upholds Health Law,” Wall Street Journal, September 9, 2011. http://online.wsj.com/article/SB10001424053111903285704576558671304247398.html