No, Delegate Bob Marshall, two wrongs don’t make a right

Del. Bob Marshall

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.

  • What if I don’t give a whit about ObamaCare and just want to find an affordable health insurance policy that isn’t laden down with all sorts of mandates? Can’t this help?

    • Nope. Federal regs still supersede state laws. This is a completely empty gesture.

      • Rosemary Time

        So the feds are going to control all our health care, right down to who can give me an eye exam and glasses and my kid’s braces? Ridiculous. There is nothing in the Constitution that gives the feds that kind of authority.
        Brian, you shock me. Are you sure you’re a republican?

        • Yes, I’m sure. I have nowhere here claimed to support Obamacare or that I believe it’s good policy. It isn’t. What I am saying is that the way to fight it isn’t by passing unconstitutional pieces of state legislation.

          The Supreme Court has held Obamacare is constitutional – at least the parts of it that have been challenged so far. That means we need to repeal it, not play games trying to pass laws at the state level that are immediately superceded by federal law.

  • I agree that Virginia law can’t trump a constitutionally permissible federal law (like Marshall’s 3 current bills attempt to do), but I think the Fourth Circuit got it wrong in finding that the Virginia Health Care Freedom Act did not provide Virginia with standing to challenge the constitutionality of the individual mandate in Obamacare. I think Virginia’s statute was valid as passed by the elected representatives of the people, and given that it was enacted prior to the enactment of Obamacare and that Obamacare was in conflict with Virginia’s act, I believe Virginia did, in fact, have standing to assert that its law trumps Obamacare because Obamacare’s individual mandate is unconstitutional. We obviously would have lost on that point (thanks Chief Justice Roberts), but I think the Fourth Circuit was wrong to rule that we didn’t have standing to make the challenge.

  • Mark

    I usually agree with the articles on this site, but this one I think is off base. The problem that these bills seek to solve is an unconstitutional imposition that restrict legitimate, traditional, and long-standing free exercise of religion. Simply passing Marshall’s laws isn’t flouting the Constitution, even if they end up not being enforced. The point is that passing them powerful gesture that states like VA are willing to stand up and legislatively pass conscience protections. If they don’t end up actually fixing the situation, there’s no harm done, and the constitution isn’t violated. Worst case scenario, the federal law trumps and Marshall’s bills don’t actually work. I don’t think we should allow what is really fear of Saturday night live and Jon Stewart to masquerade as not wanting to ‘wasting time and resources’. I hope I’m wrong about the GOP leaders fears, but it seems they care more about saving face than doing the right thing, and that goes for more issues than just this, particularly issues about protecting children in their mother’s wombs.

    • What is powerful about passing an unconstitutional law that won’t do what it claims to do? All this will do is get folks hopes up when these bills won’t do anything.

      I think it does significant harm when we pass laws we know are unconstitutional as a gimmick. Pass a non-binding resolution instead. If we want the constitution to mean something, we need to respect it, too.

      • MD Russ

        Whole-heartedly agree, Brian. Mark seems to be mistaking campaigning for legislating. Every member of the Virginia General Assembly takes an oath to support the Constitution of the United States as well as the Constitution of Virginia. When Bob Marshall proposes legislation that is clearly unconstitutional then he is either an uneducated fool or a traitor. Neither one belongs in the General Assembly.

  • Unfortunately, you’re right. I wish you were wrong, particularly in this instance, but you’re right.

  • Marshall’s measures are not the constitutional problem here – Obamacare is. This article seems to assume that any law passed by the federal government is automatically lawful, and that is not only not the case, but it is more often than not that measures passed at the federal level are completely unlawful.

    You can’t only apply the Constitution where you like.

    • You can’t also decry the growth of federal spending yet cry when sequestration is going to affect your state.

      Hypocrisy, Ms. Bank. Welcome to the real world.

    • Laws passed by the federal government are presumed to be Constitutional until the courts determine otherwise. Right now, there are a handful of lawsuit proceeding through the courts on these issues, and I think there’s a reasonable chance that at least one of them will result in the Obamacare mandates that infringe on religious liberty will be held a first amendment violation. That’s the right way to address the issue, not passing nullification bills that everyone recognizes will do nothing.

      • That presumption is a legal principle for the government itself; citizens are not obliged to share that opinion, especially when those laws conflict with the clear language of the Constitution.

        For example, if the feds decided to outlaw all guns tomorrow, the government itself may have to behave as if it were lawful until a court determines otherwise, but any citizen who took that position would be considered to be moronically stupid and perhaps illiterate, since there is nothing at all ambiguous about “shall not be infringed”.

        Given that you’re a lawyer, I understand you’ve been (properly) trained to make this presumption, but it is not in fact true outside of the job functions for which it is a requirement.

        • I wish that folks would view the supremacy clause in the same way they view the 2nd Amendment – that they’d react as angrily when they see state legislators trying to pretend that they have the ability to ignore federal law as they see fit, regardless of the reasons why.

          We all have opinions and that’s fine. The problem I have is when folks say “x is unconstitutional” when a court has held otherwise aren’t expressing an opinion, they’re simply stating an incorrect fact. You can make an argument that something is unconstitutional until a court decides otherwise, of course (that’s what I’m doing here), but it demeans the constitution to call things that have been held constitutional to be violations when they aren’t.

          Marshall should be treated very harshly by those who claim to be constitutional conservatives for blatantly ignoring the Supremacy Clause when it suits him.

          • Perhaps another read of the Supremacy Clause might help. It specifies that the laws to which it applies must be in accordance with the Constitution. In other words, it is null and void the moment the federal government steps beyond its assigned boundaries.

            In the instant case, Marshall’s bills specifically address items which step well beyond those boundaries.

          • MD Russ


            Being the Constitutional scholar that you pretend to be, can you explain to us how and when ObamaCare was held to be unconstitutional? I personally find it to be a financial abomination that doubles-down on our budget deficits and debt. But that doesn’t make it unconstitutional.

          • Managing health care isn’t among the duties listed in Article I Section 8 of the Constitution which specifies the breadth of authority of the federal government.

            The 9th and 10th Amendments make it clear that where federal authority is not specifically enumerated, states and individuals are sovereign.

          • MD Russ


            First of all, the 9th and 10th Amendments have been inoperable since the New Deal. Second, your interpretation of Article I, Section 8, is inoperable until you get appointed and confirmed to the SCOTUS and convince at least four other justices to agree with you. Got it?

          • If we’re not following the Constitution, everything that masquerades as law is a farce.

          • MD Russ

            Okay. The Constitution provides that only the Congress can declare war. If nuclear missiles are launched against the United States, shall we wait for hearings in the Armed Services and Foreign Relations Committees before deciding to respond? And waiting more than 20 minutes is a farce.

          • When we faced that as a real threat we had a lawfully enacted policy in place to deal with it. Today that is not a real threat so it’s pointless to discuss that scenario.

          • We are following the Constitution. The problem is when people think their personal reading of the Constitution is more authoritative than the Supreme Court’s.

          • No, the problem is when the federal government thinks it has the sole authority to unilaterally alter the deal between the States represented by the Constitution.

            If you seriously think I’m going to take the word of people like Ruth Bader Ginsberg over my own well-educated and well-considered judgment, you are quite mistaken.

            The Constitution was designed to be read and understood by any common citizen, and cannot lawfully be “interpreted” into something else no matter what the Supreme Court says. The system you are describing is fundamentally different than – and hostile to – the Republic that is the United States of America.

          • No, the system I am describing is the system that was designed and is working as it was intended to work. But there is no point trying to argue with you about it, because your ego won’t let you accept any other viewpoint but your own.

          • The system was never designed to permit the federal government to unilaterally expand its own sphere of authority.

            It is not my ego which is the barrier here, it is my clear insistence that words have actual meaning, and don’t change based on what you (or a handful of robed tyrants to whom you have been professionally trained to treat as gods) want them to mean.

            I feel like Alice in Wonderland, talking to Humpty Dumpty:

            “I don’t know what you mean by ‘glory,’?” Alice said.

            Humpty Dumpty smiled contemptuously. “Of course you don’t—till I
            tell you. I meant ‘there’s a nice knock-down argument for you!’?”

            “But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

            “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

            “The question is,” said Alice, “whether you can make words mean so many different things.”

            “The question is,” said Humpty Dumpty, “which is to be master that’s all.”

          • The system was designed with ambiguities included because no system could be designed that would get the assent of all the states to it. Things weren’t defined, the exact relationship of the states to the federal government was left ambiguous and there was the full expectation of amendments as soon as it was ratified, which happened.

            Attacking the Supreme Court is stupid. They are explicitly called for in the Constitution, and they are given the authority to adjudicate all cases and controversies that arise under the constitution. That’s pretty broad, and because if that grant of authority, what they say is final unless Congress overrides them. When they interpret the Constitution, it’s final until the constitution is amended. You can complain about that as much as you want, but that is how things work. Jefferson and Madison had a perfect chance to blow that up when Marbury was decided and they chose not to.

            Words do mean things, and words in legal documents mean things that aren’t always apparent to the lay reader, especially when the document has two hundred years worth if definitions appended to it. It is your ego that’s the problem, because you refuse to believe that anybody may have a better or more authoritative understanding than you do about these issues. That’s the sign of a weak intellect.

          • A sign of a weak intellect is the inability to understand that when a person is acting with authority granted by the Constitution, they cannot legitimately act outside its bounds while in that role.

            It would be like me being I.T. manager of this blog and exercising that authority to edit the content of your posts. It’s an nonsensical claim.

            Attacking the Supreme Court is only stupid if you’re a lawyer, which you are. For someone who doesn’t depend on some authority to tell him what and how to think, it is no problem at all to find acts of the Supreme Court that are gross violations of law and common sense.

            There’s no point in having the Constitution say something if a handful of judges can interpret it into its opposite. No matter what SCOTUS says, up is NOT down, black is NOT white, the federal government’s authority is not unlimited, and citizens do indeed have rights other than the “right” to have an abortion.

            You may be willing to outsource your critical thinking skills to “authorities” but no person who ever advanced the prosperity and well-being of the human race has ever done that.

          • /eyeroll

          • Tell you what, next time I want your opinion I’ll just ask a Democrat what he thinks and make the very safe assumption you believe the same.

            I swear you must have made your life goal to be the most anti-republic “Republican” ever. Whoever invented the term RINO must have known you well.

          • Tell you what, next time I want your opinion, I’ll just ask the nearest paranoid conspiracy theorist and make the very safe assumption you believe the same thing.

            I’m not anti-Republic. I’m anti-semi-informed armchair pundits, like you.

          • Rosemary Time

            Yes, that does appear to be the case. I’ve never known a republican quite like Brian.

          • MD Russ

            Just out of curiosity, Alexis, where in the Constitution is the Federal government empowered to regulate nuclear reactors? Where is it empowered to regulate clean air and water standards? Where is it empowered to regulate the quality and purity of foods and drugs? Where is it empowered to regulate work place safety? And the list goes on and on. Would you roll back all Federal standards that protect us every day from 19th Century-era abuses?

          • We don’t need federal standards to prevent abuses, states can decide on their own which of these regulations they do and do not want. Damage to private persons or property can always be resolved through the courts.

          • EricMcGrane

            MD: All those can and should be governed/regulated at the state level. This isnt hard.

          • EricMcGrane


          • EricMcGrane

            MD: We don’t have to prove that its unconstitutional. You have to prove that its a federal concern in Article 1, Section 8. If it isn’t there, its a state issue. Period, End of Line.

          • EricMcGrane

            Exactly. The courts have decided that healthcare is a fed area of concern, then the courts decided that this new-found area of power trumps the state’s power. Its all fabricated lunacy.

          • EricMcGrane

            Brian: If the supremacy clause means what you appear to say it means, are states sovereign? I’m reading your argument to indicate that anything that the federal court decides must be respected by the states. Do you see this as the spirit and intent of the Constitution?

            Why not abolish state law, if all state laws have no weight/standing?

          • Grant Mulkey

            States are not absolutely sovereign, no. They gave up their absolute sovereignty when they agreed to join themselves in our Union. But they are sovereign in certain areas. State sovereignty has been limited due to the Court’s expansive reading of the Commerce Clause and other constitutional provisions. Thankfully, the Court is starting to reign in this jurisprudence and recognize the traditional spheres in which the states are sovereign.

            Brian did not say that all state laws have no weight/standing. That’s not even a reasonable inference from what he said. State law certainly has weight and standing in the areas in which states can legislate (which are many of them, by the way). However, there are certain areas where states cannot legislate, and other areas where they can legislate concurrently with the federal government. In those areas, federal law trumps. That’s the meaning of the Supremacy Clause.

          • EricMcGrane

            Awesome. Could you show me where the fed govt has the authority to legislate in healthcare? Because it would seem to me that the several states actually have that power, so no concurrency is occurring.

          • Grant Mulkey

            I cannot point you anywhere beyond the provisions that Brian has already mentioned. He and I are of one mind on this issue. The Supreme Court has determined that the individual mandate is a valid exercise of Congress’s Taxing Power (Art. I, § 8, cl. 1). The Court has construed that power very broadly throughout our history, both as a means to raise revenue and as a means to regulate conduct that Congress could not otherwise regulate so long as the regulation generates some type of revenue. Personally, I thought that NFIB v. Sebelius was a great case for the Court to continue limiting the reach of the Commerce Clause and to begin limiting the reach of the Taxing Power. Unfortunately, they did not.

            I will also mention that the Necessary and Proper Clause has also been given an expansive reading since very shortly after the Constitution was ratified. Early on in our republic, there were competing views as to what it meant, but that question was answered–for good or bad–a couple centuries ago.

          • Rosemary Time

            I’d also like to know where the Federal government gets to decide on abortion services, such as when and where abortions can be preformed.

          • EricMcGrane

            Rosemary: your question will never be answered until the government rules on when life begins. This is germane to the question of govt protecting “life, liberty, and the pursuit of happiness”.

          • States are sovereigns. So is the federal government. States are sovereign in the areas they have always been sovereign, but they are subordinate to the federal government in areas where the constitution provides the federal government power to act. The point of the supremacy clause is to make clear that where state and federal law conflicts because the sovereignty is overlapping, federal law wins. That’s the beauty of the design. There is always tension between the states and the Feds on some issues.

          • EricMcGrane

            Ok, so if the supremacy clause is relevant in matters where the Constitution gives the Fed govt the power to act, where in Article I Section 8 is healthcare listed?

            Or, to take another approach, where (in which matter) specifically would the supremacy clause hold no sway?

          • Eric, the commerce power and the tax power were what was used to enact the health care law. While I oppose Obamacare, the courts have held that it isn’t unconstitutional.

            Areas where the supremacy clause wouldn’t hold sway would be if the laws passed were unconstitutional, if they interfered with the states in their internal governmental workings (like commandeering state officials to enforce federal law), if they usurped traditional state functions like local law enforcement, family law, wills and trusts, and the like. There have been cases where federal power has been curbed, as in Lopez, and the supremacy clause hasn’t held sway.

          • EricMcGrane

            Disagree. The tax power and the commerce power were used to justify the validity of the argument used to construct healthcare law….but that says nothing about whether or not the fed govt has the power to be in the healthcare business in the first place. These are 2 very different things. Again, if healthcare is in A1S8, I don’t see it. That the court ruled that its there (essentially)…..doesnt make it there.

          • Eric, if you believe in the Constitution, you just can’t dismiss what the Supreme Court says when you disagree with it. We made the argument that the law was unconstitutional. We lost that argument. There’s no point in continuing to make it. There’s a lot of stuff we do that’s not explicitly in Article 1 Section 8 that’s justified through powers that are listed there. Article 1 Section 8 was never intended as the definitive, this-and-no-farther list of what’s okay – if it was, there would be no necessary and proper clause.

            The time to make most of the Obamacare-as-unconstitutional arguments has passed (at least, on the mandate issue – I think the religious freedom issue is still out there and we’ve got a good shot at winning that one). We need to win the “we shouldn’t be doing this” rather than the “we can’t be doing this” argument now.

          • EricMcGrane

            I’m not dismissing it…I’m saying it was ruled incorrectly. And I agree with you that continued discussion is not likely to change things.

            However, this doesn’t change the fact that the Constitution *did* give clear guidance as to which powers the fed govt had, and specifically stipulated that all other powers besides those are state powers.

            It the fed govt wasn’t being specific and clear, there would have been no need for the enumeration.

            And finally, the necessary and proper clause *only* pertained to the **execution** of powers that were previously enumerated in A1S8, so I don’t agree with what appears to be your assertion that necessary and proper covered the realm of “new” powers *not* previously enumerated.

          • Rosemary Time

            They’re sovereign until they’re not, like Roe v Wade. The states have always decided medical issues, until the SCOTUS ruled otherwise.

  • Until somebody has the guts to stand up and tell Marshall that he’s an embarrassment or his district’s voters tell him that by voting him out, he’ll be seen as “What’s Wrong With The Virginia Republican Party”. Sadly, a group can be defined by it’s wackiest member.

  • Scout

    Brian describes some basic, high school civics, constitutional principles that, quite embarrassingly, seem to escape many of our brethren on the right. This is basic federalism. If we stand for anything as conservatives, it is the protection and preservation of the federal system. Marshall doesn’t seem to care. A lot of pols don’t seem to care. The Constitution has few friends in politics. Brian is one of the few.

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