When States Object to Federal Law
By Stephen R. McAllister
In recent years, states with some frequency have disagreed with and objected to a variety of federal laws. Sometimes the objectionable federal law has been in the form of federal statute. Sometimes the federal law is constitutional law, in the form of U.S. Supreme Court decisions interpreting the scope of the federal government’s power and federal constitutional rights.
Prominent examples in recent years include state objections to the federal health care law, in particular the individual mandate that requires people to purchase health insurance, and the federal government’s decision not to exempt certain employers with religious objections from mandatory contraceptive coverage as part of employee health plans. Other prominent examples include state-sponsored personhood amendments or laws that would declare life to begin at conception, an objection to the current abortion jurisprudence under federal law.
No matter the source of federal law, however, basic issues of pre-emption apply when state and federal law both operate on the same subject matter.
The starting point for any discussion of the relationship between the U.S. and state constitutions is the Supremacy Clause of Article VI of the federal constitution, which 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, anything in the Constitution or laws of any state to the contrary notwithstanding.” (Emphasis added.)
As stated in “State Constitutional Law: The Modern Experience,” this clause “makes clear—in explicit terms—that federal law has primacy over state law, including state constitutions, when there is a conflict between any federal law (constitutional, statutory, or even regulatory) and state law.”
There are numerous examples of the U.S. Supreme Court invalidating state laws and provisions in state constitutions that are pre-empted by contrary federal law. So if there is a true conflict between federal and state law, longstanding legal doctrine leaves no doubt as to which law prevails—the federal law trumps contrary state law.
For example, a state law prohibiting any state resident from being required to buy health insurance cannot block a federal law requiring such purchases. A state law exempting employers from covering contraceptives in their employee health insurance plans on religious grounds cannot block or supersede valid federal law that, to the contrary, requires employers to provide such coverage.
It is, of course, also true that state law can express a preference for drawing the balance differently in such cases than does federal law. So a state may adopt a state constitutional amendment or enact a statute that expressed disagreement with the holdings of Roe v. Wade and related abortion cases, or that objects to the imposition of particular requirements under the federal health care law.
Such a state law may serve the useful and important purpose of permitting a particular state’s residents to express publicly and collectively their strong and fundamental disagreement with federal law in controversial areas. Indeed, on some very important and potentially controversial issues, state law—including state constitutions—may enshrine very different value judgments than those found in the U.S. Constitution, as interpreted by the U.S. Supreme Court.
But there should be no illusion that state laws contrary to valid federal laws can somehow exempt an objecting state and its residents from such federal laws, or provide some sort of legal immunity from the application of federal law. That simply cannot happen in light of the Supremacy Clause of the U.S. Constitution and longstanding U.S. Supreme Court precedent.
Nor do state laws purporting to preclude the application of federal law to state residents give the state—usually in the person of the attorney general or governor—legal standing to challenge objectionable federal law. Instead, the affected people would have to bring their own lawsuit challenging federal law. For example, a person objecting to a requirement to buy health insurance would bring the lawsuit. That person’s challenge would not be that state law immunizes him or her from compliance with federal law, an argument that would necessarily fail as a legal matter. The argument would be that the federal law is invalid, either because it exceeds the power of Congress—the argument made in the health care cases—or because applying the federal law will violate individual rights protected in the U.S. Constitution.
Only if the Supreme Court were, for example, to overrule Roe v. Wade and declare that the U.S. Constitution does not recognize any individual right to decide whether to terminate a pregnancy could states ban or limit abortions beyond what current federal law allows. And, of course, if in the recent health care cases the Supreme Court had ruled that Congress lacked the constitutional power to impose the individual mandate in the health care law, then no citizens would be subject to that requirement. That result would be because the federal government never had the power to impose the mandate, not because the states passed laws or constitutional amendments contradicting federal law.
Ultimately, state legislatures certainly may, in given instances, prefer a very different recognition of rights than what is provided by the federal constitution, and those state preferences may go in either direction—in favor of greater protection or in favor of less protection than federal law provides.
But what state legislatures and states cannot do in our system of dual sovereignty is simply opt out of federal law with which they disagree on policy, moral, ethical or religious grounds. If that proposition was not settled when the U.S. Constitution was ratified in 1789, then the Civil War certainly resolved the question in favor of federal supremacy over state law. At least in the sense that when federal and state laws conflict, federal law always prevails so long as the federal law is otherwise valid in the first place, i.e., the federal government had power to enact the law and the law does not violate any provision of the U.S. Constitution.
Stephen R. McAllister is a law professor at the University of Kansas School of Law and solicitor general of Kansas. For a more extensive discussion of these issues, see McAllister’s “Individual Rights Under A System of Dual Sovereignty: The Right to Keep and Bear Arms,” available online.