Collective Conscious

Pur­su­ing a law­suit against the fed­eral gov­ern­ment over the recent health care law, Vir­ginia Attor­ney Gen­eral Ken Cuc­cinelli claims: “[It] is a very basic right of a sov­er­eign state to pass its own laws and to pro­tect those laws. And that’s what we are doing in this lawsuit.”

Unfor­tu­nately the law in ques­tion is one in which Vir­ginia attempted to declare the fed­eral law null and void within its ter­ri­to­ries — nul­li­fi­ca­tion, a doc­trine which was dis­cred­ited over 150 years ago. Cuc­cinelli knows this: “Nor­mally the supremacy clause would have the fed­eral law trump­ing” — uh, yeah — “but it is our posi­tion that because the fed­eral law is uncon­sti­tu­tional that Virginia’s law should trump.”

Now that’s a tan­gle — because this law­suit is the very one which seeks to have the fed­eral law declared uncon­sti­tu­tional. So the case is only jus­ti­fied ex post by its own deci­sion in favor of the plain­tiff. This is extremely shaky, and a good reminder for why we have the Supremacy Clause to begin with. The cen­tral­ized, fed­eral gov­ern­ment can make these sorts of deci­sions, which are bind­ing on all agreed states, with­out the fear that one of them will renege later: col­lec­tive action for dummies.