Obamacare

For Federal Power, Does the Mechanism Matter?

If, come June, the Supreme Court decides to strike down ObamaCare’s individual mandate, they’ll accomplish something almost unique in the Court’s history, but not for the reason you think. We expect the Court to strike down unconstitutional laws; even conservatives agree with that proposition (for now). What we don’t often see is a Supreme Court willing to invalidate a law that’s constitutional in its effect, and only deficient in the means it chooses to achieve that goal.*

No-one seems to doubt that Congress could constitutionally coerce citizens into purchasing insurance coverage by, for example, altering the tax code. Even conservative pundits and the Supreme Court seem to agree (pdf). The question is — per Justice Kennedy — whether that matters:

Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.

On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.

It should. The Supreme Court rarely strikes down questionable extensions of Commerce Clause power if they would be otherwise sustainable under separate constitutional rules. Consider the case of the Civil Rights Act of 1964, which used the Commerce Clause to forcibly integrate all public institutions — restaurants, hotels, etc. — nationwide, and regardless of whether those institutions themselves engaged in interstate commerce. No-one can reasonably doubt that the Civil Rights Act was a very good thing. But as an exercise of Commerce Clause power, it’s… well… dubious.

Segregation impacts interstate commerce, Congress said, because it acts in restraint of trade, by relegating wide swaths of the population to second-class status. This barrier to commerce should be regulable under the Commerce Clause. Sure, but as the Supreme Court has repeatedly said since, Congress cannot regulate social problems, no matter how serious, by packaging them as barriers to “commercial” activity. And, moreover, the government’s position that no establishment could evade such regulation, no matter how small or how isolated from national commerce, defied conventional wisdom on the boundaries between state and citizen. To paraphrase Justice Kennedy, by making it impossible for individual Americans to evade the administration’s chosen social policy — integration — the Civil Rights Act threatened to “profoundly change the relationship of the federal government and individual Americans.”

And yet, the Court went on to sustain the Civil Rights Act — twice — holding that the Commerce Clause supported such broad-ranging social policymaking, and even if it didn’t, that Congress’ powers under the Fourteenth Amendment’s Enforcement Clause undoubtedly made up the deficiency.

This was undoubtedly the right decision. If all agree that Congress could constitutionally enact a statute, the Court has only minimal interests in striking it down merely because Congress chose the wrong means to a valid end. And all such interests — avoiding a “slippery slope,” or maintaining consistent doctrine — are historically avoidable, and can be managed by a sufficiently careful Court. Neither McClung nor Heart of Atlanta Motel presaged a total erosion of limits on the Commerce Clause, for example, because the Justices and the public alike knew exactly what the Court was doing.  The Civil Rights Act, for its importance to the country and its clear overlap with Congress’ Fourteenth Amendment powers, was special, and no-one has ever mistaken those decisions carefully upholding it for a general abandonment of Commerce Clause principles.

Similarly, despite the Justices’ intensive search for a “limiting principle” to constrain any decision upholding ObamaCare, there is no real danger that a sufficiently careful decision — acknowledging both the uniqueness of the insurance market and that Congress could constitutionally go far beyond the mandate using its tax power — would inaugurate an era of broccoli mandates or compulsory gym attendance. The Court is the master of its own destiny, as it’s proved time and again. If the individual mandate is an “extraordinary” mechanism, but one entirely incapable of altering the balance of power between the federal government and the states. And that’s all that should matter

* – Except in equal protection challenges. 

The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law:

And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.

As much as I’m willing to grasp at anything that might help the government sustain the mandate, I hope it’s obvious to everyone that while the democratic process is itself a limit on federal power, it’s not one that can be relied upon to restrain government action. The Constitution precommits us to certain values, with the knowledge and expectation that we might, one day, try to transgress beyond them. In such cases, the Constitution is there to limit the people’s transgressions against themselves, and snap them back into line.

The very essence of the Court’s countermajoritarian role is that elections alone are inadequate safeguards on popular liberty. If this is something we as liberals accept in social causes — when we try to invalidate validly-enacted, but nonetheless noxious bans on gay marriage — we can’t ignore it when it hurts us. That’s the conservative approach, so plainly on display on Erick Erickson’s site (judicial activism is fine when they do it, you see!). But we should be above that.

That Said, Why Did Conventional Wisdom Fail?

Let’s assume that Tuesday’s argument on the individual mandate wasn’t what any reasonable proponent should’ve expected, and that the Justice’s questions are cause for alarm. Why was every serious legal academician wrong? Two reasons. First, this is a Supreme Court that’s defied convention again and again, making them the most “activist” and conservative Court in recent memory. Neither a personal right to bear arms nor a speech right to override campaign finance laws had any serious support before the Roberts term. Second, this may be a more politically sensitive Court. Justice Thomas has always had extremist views of federal power; seeing the Tea Party grow up around has probably convinced him that his time has come. If he’s even halfway convinced his colleagues that paleoconservative orthodoxy is the new normal…

ObamaCare: The Sky Is Not Falling

Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate matters, tried in vain to maintain some semblance of calm. Let me now add my own sentiment: settle the eff down.

To anyone who expected ObamaCare’s individual mandate to be upheld by a margin of 7-2 or higher, yesterday served as a rather rude reawakening: Alito and the silent Thomas, at least, are lost votes, and likely Scalia as well. But from it’s a long ways from 6-3 to uphold to 5-4 to invalidate, and there’s no reason to think that yesterday’s arguments bridged that gap.

State of Play

True, Kennedy and the Chief Justice alike beat the U.S. Solicitor General, Donald B. Verrilli, pretty bloody. Kennedy and Roberts focused their abuse on the question of whether the government could articulate a plausible “limiting principle” — a legal idea that stops an exception from swallowing the rule — to restrain whatever expansion of government power the individual mandate entails. This General Verrilli appeared only able to manage after the conspicuous assistance of Justices Ginsburg and Breyer.

And true, Roberts and Kennedy both seemed skeptical of his answers. But only to a point — Kennedy himself closed a question posed to amici by suggesting that he’d been partially persuaded by the government’s position, and had located an appropriate limiting principle by focusing on the uniqueness of the insurance markets, and the government’s decision to limit itself to regulating only method of payment:

The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case. (Tr. 104)

Elsewhere, Kennedy pushed back on respondent’s claim that the government was impermissibly creating economic activity in order to regulate it:

But [the uninsured] are in the market in the sense that they are creating a risk that the market must account for. (Tr. 70)

This should be the takeaway. Regardless of how long it took to get there, General Verrilli managed to convince five justices that the insurance market is unique in a way that may justify otherwise extraordinary regulatory powers; and that the action/inaction distinction is not nearly as problematic as it seems superficially.

Moreover, the Court posed tough questions on all sides. The questioning was remarkable only for its partisanship: during the Solicitor General’s turn, right-leaning justices conspicuously attacked, while left-leaning justices conspicuously defended. During respondent’s turn, the position reversed. And throughout, Kennedy and Roberts played both sides. If we can draw hints from argument — a practice indulged in by court-watchers more for sport than out of any expectation of accuracy — we start to see a four-Justice bloc to sustain (Breyer, Ginsburg, Kagan, Sotomayor); a three-Justice bloc to invalidate (Alito, Scalia, Thomas); one weakly left-leaning swing vote (Kennedy); and one weakly right-leaning swing vote (Roberts).

Ego and Guesswork

If that is the state of play, Jeff Toobin’s grim forebodings don’t make a bit of sense, especially given the theories he’s put forward about how the Court operates. Recall that Toobin sees Kennedy as something of an egomaniac, a justice who loves his position as the swing vote, and tends to deploy it to maximize his own importance. If Kennedy wanted to see himself go down in history as ObamaCare’s savior, defender of the progressive movement in its most desperate hour, this is exactly how he would conduct himself at argument. Query, too, whether Kennedy wants his enduring legacy to be as the man who took the Commerce Clause to the right of even Rehnquist; or as the architect of the keystone decision that finally brought stability to twentieth century Commerce Clause jurisprudence. Either way, it’s one for the history books. But which makes a better story?

The Role of the Chief

Moreover, if Kennedy breaks left, there’s reason to suspect he’ll draw Chief Justice Roberts with him. If Roberts sees the Court voting to sustain, there’s no practical reason for him to stick to his principles and vote with the conservative minority when, by switching sides to vote with a liberal majority, the Chief could both assign the opinion to a Justice he can trust to minimize the decision’s doctrinal effect, and build the Court’s legitimacy by preventing yet another controversial case from dividing 5-4 on partisan lines.

*     *     *     *     *

Yesterday’s arguments proved that the case won’t be as easy as it should be, doctrinally. But did we really expect anything different with this Court?

Vetiver, “Wonder Why?”

ObamaCare: the Value of Narrative in Appellate Advocacy

Today begins oral argument in No. 11-398, U.S. Dep’t of Health & Human Services v. Florida, the “ObamaCare” case.  By most counts, this is a case Republicans should expect to lose, probably by a lot. The Supreme Court has never limited congressional power to regulate strictly economic conduct, not even at the high point of Chief Justice Rehnquist’s federalist revolution. This may make the five-plus hours of oral argument little more than an exercise in legitimacy, the Court’s attempt to build political cover for itself as an institution by creating the appearance of controversy.

In fact, no matter how close the case ultimately comes out, the matter is probably already, for all intents and purposes, decided. It’s the rare oral argument that changes any judge’s pre-existing view of the merits, a point that’s probably particularly relevant in controversial, closely-watched cases. For judicial opponents of Congressional power, this is a day decades in the making. For proponents of the status quo – and make no mistake, the status quo would uphold the law — this is a chance to put to bed the conspiracy theories and legal fantasies that’ve animated the Tea Party for two years. The destination is already chosen; the rest is just the journey. But the journey does matter.

Sadly, the Court chose to shut out television cameras, squandering a valuable chance to educate the public about the nature of constitutional law, and constitutional decisionmaking. This means we’ll have to wait for transcripts, or live reporting from Court correspondents. When we start to hear reports, keep the following rules about appellate advocacy in mind –

• Infer from questions only carefully: if a Justice asks a question, it’s not always because he or she personally believe the question’s implications. Justices tend to use questions not to tip their hand as to their own beliefs, but to argue with their colleagues by proxy. So if we hear a “liberal” justice ask a question that implies that the individual mandate oversteps precedent, don’t assume their vote is lost.
• Watch who the lawyers are “targeting”: it’s widely believed in liberal circles that Kennedy, Roberts, and Scalia are all “gettable” votes to uphold the mandate. Winning Scalia would be an especially valuable political coup, since he’s widely viewed as more crazily conservative than he actually is (contrast that with Thomas, who actually is as crazy as people think). Arguments from ObamaCare’s proponents turning on Gonzales v. Raich, for example, can properly be viewed as attempts to convince Scalia, who upheld federal power in that case, that the mandate is necessary as part of a complex, otherwise constitutional regulatory regime.
• Don’t expect the Tenth Amendment to come up: as we’ve detailed extensively, the Tenth Amendment argument is just a non-starter. Every lower appellate court has agreed, and the only Tenth Amendment case in recent history, U.S. v. Printz, was written by Scalia, but concerns federal “commandeering” of state officers. That plainly does not apply.
• Look for clues from narrative: the most important part of appellate advocacy is issue framing.  The Court already framed the questions (pdf), and therefore, the context of the debate. But how the advocates from their position is important, especially when we get to the individual mandate question. Look for lawyers to drop initial phrases like, “this is a case about…,” and ask yourself why they’ve chosen to frame an issue in one particular way.

Here, lawyers are in the strange position of framing a narrative maximum effect in sophisticated legal setting, and simultaneously for wider political consumption.  Politically, conservatives will want to take an extreme position – “this is a case about the government straining the Commerce Clause to its breaking point” – but counsel will have to balance the hyperbole the public expects against a legally wiser, more tentative position.  Remember that this is a Court that has never limited the Commerce Clause’s reach as a tool of pure economic regulation. And, more importantly, running to histrionics will immediately put the Court on the defensive. Even if they’ve already made up their minds, if he starts out by staking a far-right position, counsel could be in for a rough first ten minutes of arguments as the Court forces him back into line.

And lastly, remember, the course of argument may not be the best predictor for the Court’s eventual result. I’ve had judges feed me my best theory during argument, and otherwise appear to be on my side, only to lose the unanimously nine months later; and I’ve seen judges beat up on our opponent in argument, hard, only to beat up on us in the final opinion. Hard. Like lawyers, judges like to hear themselves talk, and more so than any other day, the nine justices are conscious of their audience.

Follow a live blog of the event at ABC News, or National Review.

Justin Levine, “Second Nature,” from the OST to Bloody Bloody Andrew Jackson.

The Healthcare Mandate Contradiction

Virginia’s proposed law to require an invasive vaginal ultrasound before any abortion conducted in the state blissfully lies in ruins, the product of Governor McDonnell’s attempt to run away from the more extreme wing of his party, and back to comfortable territory from whence he can seek a vice presidential nomination. But leave it to the National Review to explain to America’s women why a mandate that each abortion require, regardless of medical necessity, the act of vaginal penetration at the state’s diktat, is actually not so bad:

Actually, I won’t reproduce it — the language is pure absurdity, which I shall not utter here. Basically, the claim is that a survey of Planned Parenthood clinics recommend vaginal ultrasounds before abortion. So why should women fear a state mandate of something that their physicians would recommend anyways? Well:

On a reading of the commerce clause that allows the government to force you to buy [medical procedures] from a private company, what can’t the government force you to do?

Mildly altered from Megan McArdle, of course. Note, though, that patients pay for every procedure performed on them. There’s literally no difference between a procedure mandate, and Obamacare’s individual mandate, except that the former is more specific (therefore worse) and derives from the state rather than the federal government (therefore… better? Reports differ). Republicans manage to bend themselves into knots over the existential threat to freedom entailed by requiring American citizens to buy health insurance on the expectation that they will, at some point, use it to purchase medical services of their choosing; but can’t concern themselves with a state requiring a woman to buy, pay for, and submit to an incredibly invasive procedure that, even if healthful, she should have the option to discuss with her doctor before being bound to accept.

With reminders like this, it’s hard to view abortion as anything other than a black hole, from which reason and otherwise seemingly well-reasoned philosophies of governance simply cannot escape (at least on the right). Or as the thread that makes the libertarian fabric underlying modern Republicanism unravel, disastrously.

The Non-Recusal Tradition

Conservatives and the New York Times may agree on one thing: it’s time for the Supreme Court to get serious about producing a framework where Justices can, and do, regularly recuse themselves from matters in which they’ve had an interest. For my part, I disagree. Though there’s a better case to be made for Thomas’ recusal than for Kagan’s in the upcoming Obamacare case, I don’t think either is necessary.

As to Kagan, the path from the Solicitor General’s office to the high Court is a common one. The Solicitor General tends to attract the best legal talent, the lawyers most comfortable in front of the Supreme Court and at the bleeding edge of executive law, and those most interested in public service. In qualifications and in character, for those individuals, the Supreme Court is a quite natural next step, which is why the path describes so many justices from Taft to Kagan. Consequentially, the conflict of interest problem is one that we’ve confronted before: Justices are expected to check their prior careers at the door, and historically, they do just that. In the famous case of Youngstown Tube & Sheet Co. v. Sawyer, Justice Jackson’s concurrence survives as a strong limit on executive power, despite the fact that, as FDR’s Attorney General, Mr. Jackson advocated precisely the vision of executive power that he later denied President Truman. It’s an irony that Justice Vinson noted in dissent — he conspicuously and repeatedly cites pro-executive opinions Mr. Jackson authored as Attorney General — but not one that Justice Jackson appears to acknowledge at all. And that’s the way it should be. The Attorney General frames the law as his client would prefer it; a Justice of the Supreme Court frames the law as it is.

We have no reason to expect Justice Kagan would conduct herself otherwise. Even if Ms. Kagan had been involved in discussions on the individual mandate’s constitutionality (which seems unlikely — this whole Tenth Amendment resurgence is utterly new, remember), she will know and should be trusted to follow her predecessor’s example. The alternative — requiring recusal in every case an attorney encountered in her previous life — is untenable.

No such precedent exists to judge the propriety of Justice Thomas’ actions. It is literally a creation of the twenty-first century for a Justice of the Supreme Court to actively take a role in forming the political climate necessary for the creation of a case he will later decide. Imagine if Chief Justice Marshall had taken to talk radio to blast John Adams (“Jefferson should rescind those midnight appointments, just to show those Federalist dogs what’s what!”), and then gone on to write the decision in Marbury v. Madison.

We’d certainly have reason to doubt the legitimacy of the result. But I’m unable to frame a rule that would require Thomas’ recusal, and not set us on a slippery slope towards recusing any Justice with expressed political opinions. Since that outcome is neither tenable nor desirable, we should probably admit that when Obamacare comes before the Supreme Court, the mandate’s fate will be decided by all nine justices.

“Obama vs. the Commerce Clause”: an Answer to Richard Epstein

Unlike your average Tea Party “scholar,” who’s managed to convince himself that child labor laws are somehow an ungodly restriction on individual liberty, Professor Richard Epstein is a profoundly intelligent man. Which is why I take his constitutional arguments against ObamaCare deathly seriously. Epstein isn’t one to fantasize about a world where Lochner v. New York remains the law, or to rely on some zombified Tenth Amendment as an independent substantive barrier to federal action. No, unlike the majority of “constitutional conservatives,” Epstein operates in the real world. He’s still wrong.

His argument revolves around a Marshall court case — Gibbons v. Ogden, 22 U.S. 1 (1824) — where the Supreme Court put the Commerce Clause together with the Supremacy Clause to hold that in the realm of interstate commerce, state law yields to federal law. Couldn’t be simpler, or more clearly accurate. Professor Epstein pulls one limitation from the case, and builds out on it:

State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. [...]

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one.

Emphasis mine — the underlined element represents the linchpin of Epstein’s argument. As he reads it, individual “inaction,” as in the failure to purchase insurance, is a decision that takes place inside the boundaries of a state, whose effects fail to “concern[] more States than one.” Consequentially, Congress may not regulate that decision by means of the individual mandate and therefore, “if Gibbons were still law, ObamaCare wouldn’t stand a chance before the Court.”

It’s an interesting construction of Gibbons‘ meaning in the overall constitutional structure, but one that ignores several other constitutional traditions, some of which also trace their histories to the Marshall Court. Specifically, Epstein overlooks the Necessary and Proper Clause, and fails to parse the distinction between constitutional inquiries concerning Congress’ legislative ends, and the means Congress may deploy to those ends. Gibbons speaks to the goals Congress may pursue, not the tools it may use to accomplish those goals. That latter inquiry, and the one that governs the individual mandate’s constitutionality, is comparatively broader.

Once Congress chooses a valid legislative target, its toolkit is circumscribed only by rationality. Under McCulloch v. Maryland, 17 U.S. 316 (1819), if a national problem properly falls within the Commerce Clause, Congress may deploy “appropriate” solutions to that problem. Per Chief Justice Marshall:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Emphasis mine, again. This is an issue of argument framing. Let’s assume that Epstein properly reads Gibbons. Still, the target of congressional action that must occur “among” rather than “within” the states isn’t the individual decision to opt out of the insurance markets — it’s the interstate insurance system itself. From there, Congress derives its power to mandate individual decisions taking place within state borders based on the Necessary & Proper Clause, provided such regulation is a rational means to the constitutional end. To be sure, it’s a strange thing that Congress may target instrastate activity in support of an interstate commerce issue, but that’s a power even more settled than the admittedly aberrational Wickard v. Filburn — which Epstein also has to wish away for his argument to hold together. Per no lesser a conservative light than Justice Scalia, in his concurrence Gonzales v. Raich, 545 U.S. 1 (2005), which bothers to cite all of Epstein’s favorite cases before concluding:

Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances.

ObamaCare is nothing so controversial as Epstein, or conservative America, would like to think. This is going to be a 6-3 decision at least, provided the government’s advocates frame it in the right way, and avoid Epstein’s trap. Which they will.

Reading the Supreme Court’s Grant in the “ObamaCare” Litigation

SCOTUSblog offers full analysis of the Court’s order (PDF) granting certiorari, to which we add only limited points. First, take into consideration the length of the argument — five and a half hours, broken over several days:

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.   The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments.   (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)

Any appellate lawyer will tell you, the length of time for argument provides a reliable indication of not just how important the case is, or its complexity, but how seriously the Court regards the issues at play. As such, the record-setting argument time is properly viewed as bad news for supporters of President Obama’s historic reform. Although, on the flip side, it could just be signalling: even if the Court thought the case was a done deal, for one side or the other, could they really short-change the argument without alienating the losing faction? Especially post-Roe, the modern Court should — and does — often consider its institutional legitimacy in casting its orders. Call it the legacy of a modern Republican Party willing to cynically declare war on a coordinate branch of government, just to preserve its political relevance.

But the grants aren’t without some good news for reform supporters. The Court also took cert as to the jurisdictional question — on whether the individual mandate can actually be overturned before it ever goes into effect. And the Supreme Court also added an issue sua sponte [at its own request]:

Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).

As a threshold matter, note an error in the Court’s order. 26 U.S.C. § 7421(a) refers to the “Tax Anti-Injunction Act”; not the “Anti-Injunction Act,” a statute familiar to federal courts scholars that bars federal actions to restrain a state court proceeding, which is codified at 28 U.S.C. § 2283.  The TIAI operates as part of the jurisdictional mechanic that prevents taxpayers from suing to enjoin a tax: to challenge a potentially illegal tax, instead, prospective litigants must pay the tax, and then sue for a refund. By inserting a TIAI issue, the Court appears to openly contemplate that the individual mandate is best understood as a tax, or something sufficiently similar to trigger the policy concerns bound up in the TIAI. Taking the Court at face value, they could be hinting that the individual mandate is a tax (a position rejected by all the lower courts), separately sustainable under the general welfare clause, and that any suit against it is premature. It’s a quick way for the Court to get the case off their docket, or resolve it on objective principles not bound up in politics. Functionally, the Court would punt on the more serious question of the role of government and the scope of the Commerce Clause. And as we all know, the Court loves to punt.

Regardless, none of this changes this fundamental calculus that this is an easy case, resolved in the reformers’ favor by reference to clear precedent. I’ve just bet one of my lawyer friends $100 that the Court comes out in reformer’s favor, in some fashion, and it’s a good bet.

Flagship “ObamaCare” Suit Founders in the Fourth Circuit

Per the ridiculously well-regarded Judge Diane Motz (pdf). Remember, this reverses a previously favorable decision by Judge Sutton Hudson [Thanks Rachel! -ed.]. So wipe one hash mark off the tea party “win” column, and replace it on our side:

To permit a state to litigate whenever it enacts a statute declaring its opposition to federal law, as Virginia has in the VHCFA, would convert the federal judiciary into a “forum” for the vindication of a state’s “generalized grievances about the conduct of government.” Flast v. Cohen, 392 U.S. 88, 106 (1968). Under Virginia’s standing 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. For example, Virginia could enact a statute declaring that “no Virginia resident shall be required to pay Social Security taxes” and proceed to file a lawsuit challenging the Social Security Act.  Or Virginia could enact a statute codifying its constitutional objection to the CIA’s financial reporting practices and proceed to litigate the sort of “generalized grievance[]” about federal administration that the Supreme Court has long held to be “committed to the . . . political process.” United States v. Richardson, 418 U.S. 166, 179-80 (1974) (internal quotation omitted).

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. See, e.g., id.; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974). We cannot accept a theory of standing that so contravenes settled jurisdictional constraints.

And so Kenneth Cuccinelli’s dalliance into constitutional adventurism ends with a stellar rebuke of tea party-influenced nullification theories. Congratulations, Virginia taxpayers! It takes a big man to gamble his state’s money and his political career on a legal theory rejected before the Civil War; but it takes a very special electorate to let him.