Health Care Reform: The Return of Interposition

[meegbear]

Fifty years after its last high-water mark in American life, the dubious doctrine of interposition is back in vogue. Once offered up in vain by desperate southern leaders as a legal justification for blocking federal civil rights initiatives, including Supreme Court rulings, it is now being used by opponents of health care reform as they marshal their forces with an eye toward post-passage litigation challenging the constitutionality of the new legislation.

The largely discredited doctrine posits that the effect of Supreme Court decisions or other "encroachment" by the federal government may validly be blocked by the "interposition" of a viable state right (say, under the 10th Amendment) between the feds and the subject of the consitututional pronouncement. It's the theoretical equivalent, in other words, of a state official standing in front of a schoolhouse door blocking a lawfully-registered student from entering. It garners a lot of heat, and even a little bit of historical light, but has no tangible support in modern American law.

The Supreme Court has never, ever ruled the doctrine valid or permissible as a defense to the enforcement of a federal law. In fact, even the most strident states-rights advocates among the Justices have drawn the line at the implementation of interposition, if not for legal reasons than surely for practical ones. No surprise, of course, because interposition would put to a popular vote, state to state, the question of whether to follow controversial Supreme Court decisions and orders. In so doing, it would directly undercut the Court's preeminent ruling, in Marbury v. Madison, which forms the basis for the way constitutional law is made; with final judicial review resting solely with the Justices.

That these two disparate issues -- the civil rights movement of the mid-20th Century and the health care reform debate in 2010 -- would be so linked by such a forlorn legal concept says much more about the latter than it does about the former. When segregationalists cried "interposition" and then massively resisted Supreme Court rulings and the federal voting rights legislation of the 1950s at least it was to protect centuries of tradition and their way of life, as morally repugnant as slavery, racism, and the world of "separate but equal" had been. It was done to protect a lifestyle, a heritage, a sacred way.

When modern-day reactionaires cry "interposition" now, on the other hand, it is largely to protect from federal tinkering an unworkable, expensive status quo on health care. Sure, interpositionists today talk about sinister federal intrusion, and the expense of it all, and of saving themselves from the tyranny of government-issued health care bureaucrats. But the effect of their work would be to protect insurance companies and Big Pharma. It would be to keep millions of Americans without better access to health insurance.

<snip>

http://www.theatlantic.com/politics/archive/2010/03/health-care-reform-the-return-of-interposition/37778/