In Print: Volume 89: Number 1
By Raquel Frisardi
89 Wash. U. L. Rev. 207 (2011)
The appeal of popular lawmaking, one of the few ways in which citizens of our country may make their wishes directly known without elected officials acting as intermediaries, is obvious. Whether via citizen-initiated petition or propositions from the legislature, more than half the states currently provide their citizens with the opportunity to enact laws through the ballot box. Popular participation in government is a principle that has been endorsed with lofty rhetoric by some of history’s most gifted political theorists. Alexis de Tocqueville wrote, “The absolute sovereignty of the will of the majority is the essence of democratic government . . . .” Abraham Lincoln asserted, “A majority . . . is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism.”
In 2010, Missouri voters opted to exercise their lawmaking prerogative by passing Proposition C (“Prop C”), a popularly enacted response to the now-infamous federal Patient Protection and Affordable Care Act. As it appeared on the ballot, Prop C asked: “Shall the Missouri Statutes be amended to: Deny the government authority to penalize citizens for refusing to purchase private health insurance or infringe upon the right to offer or accept direct payment for lawful healthcare services?” Missouri voters overwhelmingly answered “yes”; Prop C passed with more than 70 percent of the vote. Prop C’s chief sponsor in the Missouri Senate asserted, “The citizens of the Show-Me State don’t want Washington involved in their health care decisions.” One Prop C supporter boasted that it was “the vote heard ’round the world.” However, the bill’s critics denounced it as “a waste of time.”
It seems clear that a state law whose unequivocal purpose is to “deny” authority to the federal government will not be allowed to stand if and when it becomes subject to judicial review under the Supremacy Clause of the United States Constitution. However, whether or not the outcome of judicial review of Prop C is a foregone conclusion, the questions of exactly why the law is invalid, and what process of inquiry a court should go through to invalidate it, remain. The pertinent analytic framework for judicial review of Prop C is most likely the federal preemption analysis—an analysis of whether or not the law presents sufficient conflict with federal law that it must be struck down as unconstitutional under the Supremacy Clause. Potentially, the standard federal preemption analysis could be modified to account for the popular origins of Prop C by either relaxing or increasing the level of judicial scrutiny applied. Does the mere fact of the law’s conflict with federal law automatically render it impermissible? Do the popular origins of the law make it particularly suspect when weighed against the product of constitutionally dictated, representative government? Or, should those origins bestow additional merit on the law?