02.02.10

Another Shot at Fort Sumpter

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The Virginia Senate passed a bill yesterday by a vote of 23 to 17, with five Democrats joining the chambers 18 Republicans, stating: “No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance under any policy or program provided by and through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage.” The bill is worded in the passive voice. It could, therefore, I suppose, be intended to warn anyone who was planning to introduce a bill into the Virginian legislature imposing an individual mandate that it would not be welcome. Presuming, however, that it is aimed at the federal health reform law, the law either shows a profound ignorance of federal constitutional law or a cynical belief that there is no downside to passing a politically popular but unconstitutional state law. Presuming that Congress does ultimately pass the individual mandate, the Virginia law will be clearly unconstitutional under the Supremacy Clause, which states that the laws of the United States are the supreme law of the land, anything in state law notwithstanding. The inability of the states to pass a law nullifying federal law is a foundational principle of our Constitution, which rejected the Articles of Confederation which left the states in control and it is the only constitutional principle over which we have fought a civil war. Earlier posts have further clarified the impossibility of state nullification.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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