It is to be expected that those on the losing end of the Fourth Circuit’s unanimous dismissal of Virginia’s challenge to the individual mandate have criticized the opinion in Virginia v. Sebelius.
There is nothing to criticize about engaging in such criticism. One of the most beneficial functions that lawyers and others can serve is to criticize judicial opinions. These opinions do not come down from Mt. Olympus but from fallible human beings like you and I.
The surprising aspect of the criticism is its focal point, which is Judge Motz’s renunciation of a theory that would enable a state to become a “roving constitutional watchdog” litigating generalized grievances in federal court.
The federal judiciary, all agree (or should agree), is not a forum for the airing and resolution of generalized grievances about the government. Judge Motz argues that acceptance of Virginia’s standing theory would turn the federal judiciary into just such a forum:
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.”
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. We cannot accept a theory of standing that so contravenes settled jurisdictional constraints.
(footnotes and internal citations omitted)
On this view, the problem with Virginia’s standing theory is rooted in the separation of powers. Accepting the theory would transform federal courts from their traditional function of resolving cases and controversies into a forum for the airing of generalized grievances and quintessentially political matters.
Attorney General Cuccinelli’s press release responding to the ruling describes matters differently. By the Attorney General’s lights, the problem with the Fourth Circuit’s ruling is its misunderstanding of federalism. The court simply misunderstood the role of the states in our constitutional scheme:
In rejecting Virginia’s right to bring the action, the court said that allowing such suits would allow the states to serve as “roving constitutional watchdogs.” This was exactly a role that the Founding Fathers planned for the states to have. As James Madison wrote, under the Constitution, “the power surrendered by the people is first divided between two distinct governments…Hence a double security arises to the rights of the people. The different governments [state and federal] will control each other…”
The Attorney General’s response invokes James Madison’s famous description of the American republic’s “double security” in Federalist No. 51. As quoted by the Attorney General, Madison describes the control of state and federal governments over each other as a “double security.”
Attorney General Cuccinelli is not the first to have read Madison this way. As I understand Federalist No. 51, however, the federalism-only reading is wrong. Its plausibility arises out of ignorance of the text whose omission is signalled by ellipses in Attorney General Cuccinelli’s press release.
Here is Madison’s statement, in context:
In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
The contrast is between a single republic and a compound republic. In a single republic “usurpations are guarded against” by the separation of powers. In the “compound republic of America,” by contrast, “a double security arises to the rights of the people.” This double security consists of the division of power “between two distinct governments” coupled with a subdivision “among distinct and separate departments.” In other words, the “double security” consists of federalism together with separation of powers.
In criticizing the Fourth Circuit’s decision in Virginia v. Sebelius as “at odds with constitutional design,” Attorney General Cuccinelli’s press release ignores the separation of powers. Yet the separation of powers is half of the “double security” lauded by Madison.
In comparison with Madison’s own words in Federalist No. 51, Attorney General Cuccinelli’s press release reads as follows:
[T]he power surrendered by the people is first divided between two distinct governments
, and then the portion allotted to each subdivided among distinct and separate departments. [. . .] Hence a double security arises to the rights of the people. The different governments will control each other , at the same time that each will be controlled by itself. [. . .]
Attorney General Cuccinelli’s invocation of a truncated version of Madison’s words in Federalist No. 51 captures in miniature the problem with Virginia v. Sebelius. In Virginia’s rush to assert a federalism objection in federal court relying solely on Virginia’s Health Care Freedom Act, the Commonwealth neglected the limits placed on the federal judicial power in Article III of the Constitution. These limits, as the Supreme Court has repeatedly explained, are essential to the Constitution’s distribution of legislative, executive, and judicial power “among distinct and separate departments.”