Why Is Virginia Allowed To Manufacture Standing In Its Health Law Challenge?

On Monday, a judge in Virginia ruled that the state’s lawsuit challenging the individual mandate in the new health care law should proceed partly because the state’s recently enacted ‘Virginia Health Care Freedom Act’ — which protect Virginia citizens from the individual requirement — conflicts with the federal requirement and “therefore encroaches on the sovereignty of the Commonwealth and offends the Tenth Amendment of the Constitution.”

“Although this lawsuit has the collateral effect of protecting the individual interests of the citizens of the Commonwealth of Virginia, its primary articulated objective is to defend the Virginia Health Care Freedom Act from the conflicting effect of an allegedly unconstitutional federal law,” Judge Henry Hudson wrote in his opinion. “Despite its declaratory nature, it is a lawfully-enacated part of the laws of Virginia. The purported transparent legislative intent underlying its enactment is irrelevant.”

Indeed today, during an appearance on MSNBC, Virginia Governor Bob McDonnel practically admitted that Virginia’s standing in suing the federal government is derived almost solely from the legislation he signed “about four months ago”:

MCDONNELL: Well Andrea, Virginia is one of 21 states that have a suit. Virginia has its own challenge in part because of the bill I signed about four months ago that makes it illegal under Virginia law for anybody to be forced to buy health insurance. That gives us unique standing. Twenty other states have joined a suit in Florida that are also challenging it. That is in a separate federal court. But Andrea, I would suspect that no matter what happens out of Judge Hudson’s ruling in October that one side of another is likely to pursue this up to the Supreme Court.


Watch it:

Here, McDonnell is almost gleeful about inventing standing for his state. And while Hudson believes that “the purported transparent legislative intent” of manufacturing tension between state and federal laws is “irrelevant,” one must wonder about what kind of precedent this establishes. If Virginia has standing, then the restriction on state standing is a joke. States can follow McDonnell’s lead and legislate around it, challenging any federal law they disagree with, resulting in a plethora of the very kind of frivolous lawsuits that Republicans typically detest.