Ilya notes the standing and ripeness issues in the health care suits. A few weeks ago, Virginia Attorney General Ken Cuccinelli spoke at GMU law school (following a now-established tradition of having newly-minted AG’s speak at the law school). I asked him exactly these questions about Standing and Ripeness.
With respect to standing, AG Cuccinelli argues that there is no real issue for the Virginia case–the Virginia General Assembly has passed a law that expressly provides that no resident of Virginia can be compelled to purchase health insurance. The federal law creates an express conflict with the Virginia law. If the federal law is valid then the Supremacy Clause controls. If it is not valid, then the state law controls. Idaho has passed a similar, but not identically worded bill to Virginia’s, and he expects them to sue as well. According to news stories, the Idaho actually requires the AG to sue.
Standing is a more difficult issue for the other AG’s case where there is no similar state law. Presumably the other AG’s will have to proceed on the EPA v. Mass theory of the financial costs that it would impose.
On ripeness, Cuccinelli indicated that there are financial expenditures that Virginia is required to make today in preparation for the expected implementation of the law in the future. As a result, even though most of the financial burden doesn’t arise until then, he argues that the issue is ripe today. He indicated that government was in the process of calculating and documenting those current and future costs. He also argued that if an issue is almost certain to arise at some point in the future, that courts have discretion to hear an issue ahead of time, rather than just waiting for it to arrive and then trying to stop it then. That argument seemed somewhat sketchier and seemed to be an appeal to common sense more than anything.
I’ll leave others to judge the validity of these arguments. But as an initial glance it seems to me that the standing issue is not that much of a major issue in the Virginia case but that ripeness raises many more of the problems that Ilya identifies.
Several commenters argue that Cuccinelli’s argument amounts to a nullification argument. I don’t think that it true, at least as I understand the nullification claims as they were made. I’m not an expert on nullification, but as I understand it, what was going on there was that Congress was enacting laws that were within its enumerated powers (tariff laws) and thus constitutional, but South Carolina was simply saying that it did not have to abide by those laws. So even if the Supreme Court had ruled, for example, that the tariff of abominations was valid, South Carolina said it had the right to interpret the Constitution for itself. In fact, I don’t think South Carolina even tried to challenge the tariff in court, but instead just simply said that it didn’t believe it to be constitutionally valid. So that was a challenge to the Supremacy clause.
Virginia is not challenging the Supremacy clause. Virginia is arguing that this is not a valid exercise of the federal government’s power under the Commerce clause, or taxing power, or whatever. Cuccinelli readily admits (as anyone must) that if the law is a valid exercise of federal power, then the Virginia law is preempted under the Supremacy clause. That’s not the same as nullification.
What this really seems like is is any other law where the state articulates a public policy that ends up conflicting with federal law. Consider the Raich case. The state of California passed a state law legalizing pot, claiming that the law was valid under its police power and that the application of federal drug laws was not a valid exercise of the Commerce clause. It turns out that California was wrong about that in the end. But I don’t think anyone would say that Raich was about nullification. In the current case, Virginia is making basically the same argument–it enacted its law pursuant to its police power and its law is not trumped by the federal law because that law is not a valid exercise of Congress’s powers. That’s not the same as nullification.
Update 2: Reader Jeffrey Techentin emails to elaborate on the ripeness theory that AG Cuccinelli seems to have had in mind in what I refer to as the “sketchier” theory above. Jeffrey notes this point from Whitman v. American Trucking, which provides the standard for pre-enforcement review: where the question presented “is purely one of statutory interpretation that would not ‘benefit from further factual development of the issues presented,’” pre-enforcement review of statutes is appropriate. Whitman v. American Trucking Associations, 531 U.S. 457, 479 (2001), quoting Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
If a court were to conclude that thee is not need for further factual development of the issues presented (an open question, of course) then this arguably fits the situation here. Jeffrey also argues that if pre-enforcement review is ever available, the potential that the law might be repealed some time before it takes effect cannot logically defeat ripeness, otherwise pre-enforcement review would never be available.