As I described yesterday in the context of Cato’s latest brief, Virginia’s challenge to the constitutionality of the individual mandate is now on appeal before the Fourth Circuit (the federal appellate court that covers Maryland, Virgnia, and the Carolinas). Before the court even considers the constitutional merits, however, it must confirm that the state has standing to bring the lawsuit in the first place.

Indeed, two amicus briefs filed by some law professors argue that the state does not have the legal power to challenge the constitutionality of Obamacare. But Pacific Legal Foundation attorney and Cato adjunct scholar Timothy Sandefur filed a brief responding to those briefs and arguing that Virginia does have standing to bring the case.

Here’s the issue: Article III of the Constitution only lets federal courts hear “cases and controversies,” which means that a plaintiff — whether an individual, a state, a corporation, or any other entity — must have been actually harmed in a way that courts can address. For example, courts can’t review abstract political arguments or give advisory opinions. Here, Virginia argues that it’s been injured because it passed a Health Care Freedom Act that prevents citizens from being forced to buy health insurance — which is obviously in conflict with the individual mandate.

The professors say, in contrast, that states can’t pass laws that conflict with federal law as a means of getting in court and challenging the constitutionality of the federal law. They point to Massachusetts v. Mellon, a 1923 decision that said states don’t have the “duty or power to enforce … [citizens’] … rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae.…” They argue that the “the state’s interest in enforcing its legal code must necessarily give way to federal law whenever a conflict arises,” and that “[m]anufacturing a conflict with federal law cannot of itself create an interest sufficient to support standing.”

PLF’s brief explains, however, that states have had the power to do precisely that since at least McCulloch v. Maryland, the 1819 case that upheld the constitutionality of the national bank (and which is central to the Necessary and Proper Clause analysis at the heart of the larger constitutional debate over Obamacare). In McCulloch, Maryland passed a law taxing the bank simply to give it the ability to challenge the bank’s creation in the Supreme Court. Although the Court found the bank constitutionally kosher, it never denied that the state couldn’t raise its claims. And the Supreme Court has allowed states in many other cases to challenge federal laws that intrude on their constitutionally retained sovereignty.

In South Dakota v. Dole (1987), for instance, the Court allowed the state to challenge the constitutionality of laws that infringed on the power to regulate alcohol consumption (by tying federal highway funds to states’ raising their drinking age to 21) — a power that the Twenty-First Amendment leaves to states. If states can defend powers retained by the Twenty-First Amendment, why can’t they defend powers retained by the Tenth Amendment?

And states should have the power to bring these lawsuits, because the Founders intended for states to serve as a check against Congress going beyond its constitutional authority. In Federalist 46, for example, Madison assured skeptics that states would have “means of opposition” against federal overreaching, and those means would include “the embarrassments created by legislative devices.” States are supposed to defend their turf in the federal constitutional scheme. As for cases like Mellon, PLF argues that these cases involved “political questions” and so were not rulings about standing: in those cases the states weren’t really exercising their sovereign powers. But in this case, Virginia has clearly exercised its sovereignty by passing the Health Care Freedom Act.

Interestingly, one reason PLF argues that states should have standing to bring these cases is because there’s some question whether individual citizens are allowed to bring Tenth Amendment challenges. That question will be resolved this term in Bond v. United States, a case in which Cato filed an amicus brief in December. If individuals are hard-pressed to defend the federalist structure, then states certainly should be able to.

In short, PLF’s brief (which was also filed on behalf of Americans for Free Choice in Medicine and Matt Sissel, PLF’s client in a different Obamacare case) makes a complicated but crucial argument supporting states’ ability to defend federalism by challenging the constitutionality of federal overreaching. More at PLF’s blog.