Health Care Reform: The Return of Interposition

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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.

Although Rep. Patrick Kennedy (D-R.I.) took to the floor Sunday afternoon in the name of his martyred uncles and recently-departed father to call the health care measure a moral commitment akin to the Civil Rights Act, surely our current health care insurance practices are not so much a way of life as Jim Crow had been in the South during the first half of the last century. And surely the coming reform, whether it is productive or not, does not represent the societal sea change wrought by integrated schools and workplaces and restaurants and the like.

So does it really merit the sort of "massive resistance" contemplated by the interposition doctrine? Are we now going to see this loser's gambit -- we are taking our marbles, going home, and refusing to accept the legislative defeat -- every time a controversial measure is passed? It seems to me this sort of ugly future would either diminish further the import of the interposition doctrine -- which is hard to imagine given its lowly status -- or it elevates beyond comprehension or reason the passion of the people and companies against this particular reform measure.

Either way, history teaches us that it never ends well for the forces of interposition. And it won't end well here, either. Like Jim Crow and de jure segregation of the races, the era of health care coverage as we have known it for decades has come and gone, never to return. 

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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