Firing Again on Fort Sumter
Tim Jost | Leave a Comment
The health law reform constitutional law issue de jour seems to be whether the states by adopting amendments to their own constitutions can block implementation of the individual mandate on their soil. See the New York Times article, Health Care Overhaul and Mandatory Coverage Stir States’ Rights Claims. Most notably, Arizona has placed a constitutional amendment on its ballot to achieve this result, although several other states are considering it.
If any issue were clear in constitutional law, one would think it would be that the states lack the power to nullify federal law. It is the one constitutional law issue that we fought a civil war over, and states’ rights lost. Some of us are old enough to still remember Orval Faubus’ stand in the schoolhouse door, the attempt by the Arkansas legislature to amend the Arkansas Constitution to prohibit school desegregation, and the Supreme Court’s decision in Cooper v. Aaron, perhaps the only Supreme Court decision individually signed by all nine justices, holding that the federal Constitution is the supreme law of the land, that the states cannot resist it, and that state officers who resist it violate their oath of office to uphold the law.
The Supremacy Clause does not only apply to the Constitution, however, but also to laws of the United States, “any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” Art. 6, para. 2. Indeed, in the Medicaid context, the federal courts have held that a federal regulation trumps a state constitution, Hern v. Beye (10th Cir. 1965). Proponents of the nullification legislation cite two recent Supreme Court decisions that they say indicate a tilt toward states rights, one involving the enforcement of a structural injunction enforcing the Equal Opportunities in Education Act (Horne v. Flores (2009)) and the other the Voting Rights Act (Northwest Austin Municipal Utility Dist. v. Holder (2009)). Both cases, however, involved the interpretation of a federal statute. Neither gave any hint that the Court was considering abandoning basic Supremacy Clause jurisprudence.
Health care reform legislation pending in Congress is in fact sensitive to states rights issues. HR 3200 would directly enforce reforms at the federal level through a new federal agency, the Commissioner of Health Choices, without interfering with state sovereignty. The Senate Health, Education, Labor and Pension bill and Finance Chairman’s mark would rely on the states to enforce the insurance reforms, set up insurance exchanges (gateways), and to administer the premium affordability subsidies, but offers financial incentives to the states to do so and provides for federal fallback authority if the states decline to do so. The law, that is, respects basic Tenth Amendment principles by not “commandeering” state governments to administer the federal law against their will. The Baucus bill, though not yet in legislative language, takes a similar approach.
Health care reform does not operate in a Constitution-free zone, as my last post noted, but state nullification of federal reform is not a serious constitutional problem.