The statement at issue:"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 different governments [state and federal] will control each other'."
- Virginia Attorney General Kenneth Cuccinnelli, September 8, reacting to a federal appeals court ruling dismissing Virginia's constitutional challenge to the new federal health care reform law.
We checked the Constitution, and...
The Attorney General's remark is an expression of states' rights theory that goes beyond the Tenth Amendment, and may misread James Madison's thoughts on checks and balances. The Cuccinnelli statement would be entirely true, if what has recently been proposed as a 28th Amendment were actually embraced by Congress and ratified by the states. But, in the meantime, states simply do not have the authority to exercise control over federal action -- if, by that, one means the power to veto a federal effort that offends a state.
If the Attorney General were talking about states' power to lobby the federal government, thus exercising a form of persuasion if not control, the Constitution would protect that effort. Or if he were talking about filing a lawsuit to object to a federal initiative, the Constitution would allow that, too -- but only so long as the state could prove that the federal government was intruding on a state's sovereign power.
But if a state attempts to stop the federal government form acting to regulate the lives of citizens of the federal Union, the Constitution has long been interpreted by the courts to forbid the states to stand between the national government and its own constituency. Those were the precedents on which the Fourth U.S. Circuit Court of Appeals relied last week in ordering dismissal of Virginia's lawsuit against U.S. Health Secretary Kathleen Sebelius. The appeals court was dealing with an issue of federal courts' jurisdiction, and it ruled that Virginia had not demonstrated a threat to its sovereignty sufficient to get it into court on the health care issue.
James Madison often spoke and wrote about the structure of the new Constitution, dividing up power between national and state governments, and between branches of the federal government, arguing that this diffusion of power would protect individual liberty. But Madison was a stout defender of the idea that, on matters of national interest, the federal government is supreme. (Article VI says so.)
What Virginia had hoped to prove, in its lawsuit against Sebelius, was that Congress did not have the power to impose a mandate to buy health insurance by the year 2014. But that is an issue of what the Constitution says about congressional power, not about states' veto power. The Tenth Amendment does, indeed, limit national government powers (and reserves the rest to the states), but it does not give states a direct veto power over what the federal government does.
Now pending in Congress, though, is a proposed amendment that would actually hand states such power. Introduced last year, and pending in congressional committees, is H.J. Res. 62. It would amend the Constitution to state: "Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."
Georgetown law professor Randy Barnett, the author of that idea, has defended it as a way to help the states defend their own Tenth Amendment powers against a supposedly encroaching federal government. Putting forth the proposal, though, suggests that the Constitution -- in its present form -- does not give states effective control over federal action.Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work. Celebrate Constitution Day with the National Constitution Center on Sept. 16. Click here for more information.