Virginia’s basic argument for standing to challenge the individual mandate rests on the Attorney General’s authority to defend state law. Virginia’s Health Care Freedom Act provides generally that no person shall be required to obtain or maintain health insurance, while the federal minimum essential coverage provision (or individual mandate) in the Affordable Care Act imposes a penalty on individuals who do not possess a required level of insurance. The Attorney General argues that these two laws conflict, and that Virginia is entitled to file a lawsuit seeking to vindicate state law against the conflicting federal law.
For standing, the Attorney General relies on Virginia’s interest in “the exercise of sovereign power over individuals and entities within [its] jurisdiction,” which “involves the power to create and enforce a legal code, both civil and criminal.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). Observing that valid federal law trumps state law to the extent of actual conflict, the Attorney General argues that Virginia can attack the federal law because “a State has standing to defend the constitutionality of its statute.” Diamond v. Charles, 476 U.S. 54, 62 (1986).
A fundamental error in the Attorney General’s standing analysis is the equation of a State’s authority to defend its law when attacked in a case or controversy with the existence of a case or controversy any time federal law and state law conflict on paper.
A consideration of Diamond v. Charles—the Attorney General’s principal modern authority on state sovereign standing—illustrates the difference. Illinois enacted a statute regulating abortion. Doctors who performed abortions challenged that statute as unconstitutional in federal court. Diamond, a doctor opposed to abortion, intervened on the State’s side to defend the law. The district court preliminarily, and later permanently, enjoined various provisions of the challenged law while declining to enjoin all of the challenged provisions. The Court of Appeals affirmed the injunction against enforcement of three provisions and further held that an additional provision should be enjoined. Illinois chose not to appeal to the Supreme Court, but intervenor-defendant Diamond filed a notice of appeal and jurisdictional statement. The Supreme Court held that, in the absence of an appeal from Illinois, there was no case or controversy upon which it could rule. The Court reasoned that, “[b]ecause the State alone is entitled to create a legal code, only the State has the kind of ‘direct stake’ identified in [the Court’s standing doctrine] in defending the standards embodied in that code.”
Diamond v. Charles does support the claim that a state has standing to defend its laws that others may lack. But it does not follow that a State has standing as a plaintiff to bring a suit to vindicate its law from conflicting federal law. The case or controversy in Diamond v. Charles did not depend on an abstract conflict between state and federal law. Rather, as the Supreme Court noted, the case or controversy was “[t]he conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law.” The analogous “case” or “controversy” in the individual mandate context would be one between federal officials empowered to enforce the individual mandate and private parties subject to that mandate, not a State action against federal officials to challenge a provision not enforceable against the State.