Do two wrongs make a right?
If you’re Delegate Bob Marshall, they apparently do. In a recent email to supporters, he complained loudly of the fact that the House Republican leadership has effectively killed three of his bills by not allowing them to be brought up in committee. Those three bills include protections for employers from being forced to comply with Obamacare mandates (HB 1314), protecting individuals who buy their own health care from being required to buy an Obamacare compliant policy (HB 1315), and a bill to ensure the state isn’t obligated to provide abortion pills, birth control pills or other reproductive care related items through their health insurance programs (HB 1417).
The three bills all have much in common. They’re all conscience rights bills. They’re all designed to interpose Virginia law in the way of federal law. And, most importantly – they’re all unconstitutional.
For some reason, Delegate Marshall has a mental block about Article VI of the Constitution. You know, the part that says “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.“ It’s not as if the Supremacy Clause hasn’t had its day in court – many foundational Supreme Court decisions that are widely known like McCulloch v Maryland and Martin v. Hunter’s Lessee are based on it. And it’s not like we never fought a Civil War that put to rest any questions about nullification and interposition, either. Despite these facts, Delegate Marshall’s convenient forgetfulness about this basic building block of the Constitution crops up nearly every year.
This mental block manifested itself a few sessions back in his Virginia Health Care Freedom Act, which he lauded as being critical to our efforts to block Obamacare…until it was completely shot down by the 4th Circuit. Virginia’s Obamacare suit never made it out of the 4th Circuit – it was Florida and the other states’ suit that made it to the Supreme Court. The 4th Circuit stated categorically what any first year law student could tell you, saying “the mere existence of a state law like the [Virginia Health Care Freedom Act] does not license a state to mount a judicial challenge to any federal statute with which the state law assertedly conflicts.“ The 4th Circuit went on to say “...the VHCFA regulates nothing and provides for the administration of no state program. Instead, it simply purports to immunize Virginia citizens from federal law. In doing so, the VHCFA reflects no exercise of “sovereign power,” for Virginia lacks the sovereign authority to nullify federal law.”
Yet even after being smacked down so glibly by the 4th Circuit – a decision the Supreme Court allowed to stand by denying certiorari – Delegate Marshall is back, putting up three more bills that effectively do the same thing the VHCFA failed to do, on basically the same grounds and for basically the same reason.
What a pointless waste of time and resources. Good for Delegate Kilgore and the Republican leadership to keep this unconstitutional nonsense off the House floor.
That being said, I think Marshall’s heart is in the right place, even if his mind isn’t. The conscience issue is a real one, and forcing religious charities and hospitals, as well as employers, to effectively fund things that are against their teachings is wrong and something that must be addressed. But it must be addressed by Congress at the federal level, not by state legislatures passing laws that are null and void. Two wrongs don’t make a right. Fighting what looks like a first amendment violation and what is clearly a morally questionable law with what we know is an Article VI violation is not the right way to handle this issue. It makes Republicans look like hypocrites, wanting it both ways. We can’t be the party of the Constitution when we draft legislation that violates the constitution in an obvious way.
Delegate Marshall should have drafted a joint resolution condemning the federal government’s handling of these conscience issues and calling on them to respect religious freedom. Instead, he tried to combat a constitutional violation by violating the constitution.
I’m tired of it. Marshall’s bills don’t deserve to see the House floor, no matter how laudable their goal is. If we really are the party that respects and seeks to uphold the Constitution, it’s up to us not to trample on it, even when we’re trying to do the right thing.