Virginia House Revives Doctrine of ‘Interposition’ Last Used To Defend Jim Crow

Segregationist Virginia Senator Harry Byrd Sr.

In response to the landmark Affordable Care Act, numerous right-wing state lawmakers have introduced unconstitutional bills attempting to nullify this federal law. Earlier this week, however, the Virginia House of Delegates went even further, passing a sweeping nullification bill that directly conflicts with numerous Supreme Court decisions:

All goods produced or manufactured, whether commercially or privately, within the boundaries of the Commonwealth that are held, maintained, or retained within the boundaries of the Commonwealth shall not be deemed to have traveled in interstate commerce and shall not be subject to federal law, federal regulation, or the authority of the Congress of the United States under its constitutional power to regulate commerce.

It is all but certain that the Supreme Court will uphold the Affordable Care Act under its existing precedents, but this specific question has yet to reach the justices themselves. The Virginia House’s attempt to prevent the federal government from regulating locally produced goods, by contrast, is a direct assault on the judiciary. The Supreme Court has repeatedly held that Congress does not simply have the power to regulate commerce that crosses state lines, it also has the power to regulate wholly intrastate matters that “substantially affect interstate commerce.”

The Virginia Legislature has pulled this stunt before. In 1956, Virginia lawmakers objected to a different Supreme Court decision — Brown v. Board of Education. Rather than acknowledging that they are bound by the Constitution, however, these lawmakers instead enacted a “resolution of interposition” claiming that they were “duty bound” to defy the Supreme Court:

[W]e have watched with growing concern as the power delegated to the Congress to regulate commerce among the several States has been stretched into a power to control local enterprises remote from interstate commerce; we have witnessed with disquietude the advancing tendency to read into a power to lay taxes for the general welfare a power to confiscate the earnings of our people for purposes unrelated to the general welfare as we conceive it . . . .

Virginia can remain silent no longer. Recognizing, as this Assembly does, the prospect of incalculable harm to the public schools of this State and the disruption of the education of her children, Virginia is duty bound to interpose against these most serious consequences, and earnestly to challenge the usurped authority that would inflict them upon her citizens.

Sadly, the Virginia House is not alone in attempting to revive long discredited legal doctrines to advance its right-wing agenda. Sen. Mike Lee (R-UT) has suggested that child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. Sens. David Vitter (R-LA) and Rand Paul (R-KY) both believe that they can strip millions of U.S. citizens of their citizenship in violation of the Fourteenth Amendment. The right-wing lawsuits challenging the Affordable Care Act all ask the courts to “jettison nearly two centuries of settled constitutional law.”

Indeed, if the right had its way, it’s doubtful there would be much left of the Constitution.