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Posts Tagged ‘standing’

For a comparison case that more closely tracks the analysis I suggested would have been proper in my prior post on Judge Sutton’s opinion for the Sixth Circuit in Platinum Sports Ltd v. Snyder, see Judge Kanne’s opinion for the Seventh Circuit in Wisconsin Right to Life, Inc. v. Schober. The key reasoning is contained in the following four paragraphs:

Right to Life submits that the threat of enforcement inherent in the statute chilled its participation in the July 2003 special election and will continue to chill its speech unless the federal courts provide injunctive relief. “A plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him; the threat is latent in the existence of the statute.” Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (internal citations omitted); see Virginia v. Am. Booksellers Ass’n Inc., 484 U.S. 383, 393 (1988). The instant case, however, presents a unique circumstance because the statute at issue has been declared unconstitutional by a district court and that ruling was not appealed.

Although it is highly unusual to seek injunctive relief when a judgment that was not appealed has already rendered a challenged statute unconstitutional, Right to Life’s argument in favor of Article III standing is not “frivolous,” as the Board contends. Right to Life presents a two-step argument. First, Right to Life points out that the injunction entered against the Board to prevent enforcement of the statute against theWisconsin Realtors Ass’n plaintiffs did not extend to Right to Life. Indeed, district courts lack the authority to enjoin the “enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)); see also Fed. R. Civ. P. 65(d) (“Every order granting an injunction . . . is binding only upon the parties to the action . . . .”). Right to Life is correct in asserting that the injunction against enforcement granted in the Wisconsin Realtors Ass’n case does not protect it, a non-party to the Wisconsin Realtors Ass’ncase.

The second step of Right to Life’s argument is that the declaratory judgment granted in the Wisconsin Realtors Ass’n case does not limit the power of the Board to bring prosecutions under the statute. Certainly, the statute cannot be repealed by a district-court opinion; only the Wisconsin legislature can repeal the statute. Furthermore, a district court’s declaration that the statute is unconstitutional does not automatically stop state officials from trying to enforce the statute. Coupled with the Board’s refusal to issue an advisory opinion, Right to Life reasons that this is enough to present a live controversy to the federal courts.

Right to Life’s argument, however, fails to tie this theoretical harm to an actual and imminent threat of enforcement. The Board did not appeal the Wisconsin Realtors Ass’n case. Implicitly, the Board has conceded that the statute is unconstitutional. The State’s Attorney General conceded before the Wisconsin Realtors Ass’n litigation that the statute was unconstitutional in its petition to the Wisconsin Supreme Court to determine the constitutionality of Act 109. Right to Life makes no effort to satisfy its burden of persuasion by showing that any Wisconsin official, let alone the Board, has ever tried to enforce a statute in these circumstances.

The only seemingly relevant difference between this case and Platinum Sports is that the plaintiffs in the later cases in Platinum Sports were represented by the same lawyer. But this difference makes no difference. For a while, some circuit courts had applied a “virtual representation” doctrine under which representation by the same lawyer might have made a difference in the preclusion analysis. But the Supreme Court rejected the doctrine of virtual representation in Taylor v. Sturgell, 553 U.S. 880 (2008).

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Thanks to a recent post by Jonathan Adler at Volokh Conspiracy, I read with great interest last week Judge Sutton’s opinion for the Sixth Circuit in Platinum Sports Ltd. v. Snyder. The underlying claim was a First Amendment challenge to a Michigan ordinance restricting signs for sexually oriented businesses, but the opinion affirms dismissal on the non-merits ground of lack of standing. The decision addresses difficult issues surrounding “facial challenge” doctrine and standing to challenge a law that the relevant enforcement officials agree is unconstitutional and have agreed not to enforce. If this were a casenote outline, I would probably classify this decision as “right outcome; wrong reasoning.” But I’m not sure and it raises important questions worth considering, so here’s an analysis.

The basic situation consists of three cases: (1) Attorney A, representing Client X, files a complaint seeking declaratory and injunctive relief against Governor, alleging that a state law is unconstitutional–on its face and as applied–under the First Amendment; (2)  Attorney A, representing Client Y, files a second complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge; and (3) Attorney A, now representing Client Z and seeking to represent a class of approximately 400 similarly situated businesses covered by the claim, files a complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge as in the first two cases.

The timeline of relevant events in these cases is as follows:

  • April 25, 2011: Complaint in case (1) is filed.
  • July 14, 2011: Hearing in case (1) on motion for preliminary injunction and motion to dismiss.
  • July 20, 2011: Complaint in case (2) is filed.
  • July 26, 2011: District court is case (1) grants preliminary injunction and denies motion to dismiss.
  • August 25, 2011, Case (1) and case (2) are terminated by a final judgment in Plaintiffs’ favor, together with injunctions against enforcement of the statute.
  • October 21, 2011: Complaint in case (3) is filed.

The Sixth Circuit held in Platinum Sports, Inc. v. Snyder that the plaintiff business in case (3) lacked standing because it suffered no cognizable injury. I think that bottom-line conclusion is correct, but for a different reason than provided in Judge Sutton’s opinion for the court.

Let’s begin with common ground. The mere “on-the-books existence” of a statute is not enough to create legally cognizable injury. The statute must have some kind of injurious effect that a federal court is capable of redressing. Federal courts do not take statutes off the books. They enter judgments and remedies that prevent enforcement of laws. Judge Sutton’s statement of these relevant principles seems just right: “[T]he question is whether the claimant has an ‘actual and well-founded fear that the law will be enforced against them.’ Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Absent some ‘credible threat’ of enforcement, no injury exists. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).”

The Platinum Sports opinion reasons that there was no credible threat of enforcement against the plaintiff in case (3) at the time the complaint was filed because the statute had already been declared facially unconstitutional and its enforcement had been enjoined in an order agreed to by the Governor and the Attorney General. The assessment that there was no credible threat of enforcement is probably right, but not for the reason given in the opinion.

The opinion’s analysis turns on an explication of facial challenge doctrine:

A party who brings a facial challenge to a law “seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.” City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A successful facial challenge invalidates a law in all of its applications, “forbidd[ing]” any enforcement of it. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The upshot is that a State may not enforce such a law against anyone.

But what constitutes a “successful facial challenge”?

Consider the order in case (2) (which is the same in all material respects as the order in case (1)): “IT IS HEREBY ORDERED that judgment declaring that M.C.L. 252.318a violates U.S. Const., Amend. I (the First Amendment to the United States Constitution) is entered for Plaintiff and Defendants are permanently ENJOINED from enforcing M.C.L. 252.318a.”

Suppose that the defendants believe that the district court’s understanding of the First Amendment in cases (1) and (2) is wrong. Do the judgments and injunctions in those cases protect all other SOBs in the state against enforcement of the law?

The Sixth Circuit found the answer to this question in facial challenge doctrine, stating: “[T]he district court’s orders [in cases (1) and (2)] declared the laws facially unconstitutional, necessarily prohibiting their enforcement against anyone, including the plaintiff [in case 3].” Judge Sutton’s opinion for the court appears to assume that the injunctions in these cases authoritatively prohibit enforcement against anybody else, but the reason for this assumption is unclear:

In this instance, the district court entered a stipulated final judgment declaring the two laws facially unconstitutional and enjoining the Governor and Attorney General from enforcing either law. Nor is there any reason to fear the Governor or Attorney General will sidestep these orders. They agreed to their entry. If any doubt remained about the point, the Governor and Attorney General eliminated it in this case. In their appellate brief, they have recognized the “provisions to be unconstitutional,” Br. at 22, and have promised that they “will not be enforced,” id. at 16. Anything in this world is possible, we suppose. But the legal possibility that this Governor or this Attorney General will enforce these laws in the face of these injunctions is: zero.

While the opinion states that the “legal possibility” of enforcement is “zero,” that is distinct from a claim about “legal permissibility.” The opinion appears to assume that facial challenge doctrine can somehow expand the binding legal effect of a judgment or remedy. But  facial challenge doctrine cannot expand the binding legal effect of a judgment or remedy because the theory of constitutional infirmity underlying a particular judgment does not itself bind except through embodiment in a remedy or through preclusion or precedent.  In order to know the binding legal effect of the district court’s ruling in cases (1) and (2), it is therefore necessary to know the preclusive effect of the underlying judgment and the terms and permissible reach of the injunction issued. The declaration of facial unconstitutionality can only reach as far as these other doctrines permit it to reach. (Another means by which judicial declarations of law can bind in courts is through stare decisis, but that doctrine has no application here because a district court ruling has no precedential effect for other cases.)

To see why this distinction is important, suppose that the AG (enjoined in cases (1) and (2) beginning in August 2011) had sent a letter in September 2011 threatening enforcement of the ordinance against Z (the plaintiff in case (3)). Would Z have had standing to file a federal lawsuit seeking declaratory and injunctive relief on October 21, 2011? Yes, Z would have had standing. The injunctions in cases (1) and (2) protect X and Y (the plaintiffs in those cases), but these injunctions do not themselves eliminate the threat of enforcement against Z. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.”). (It may also be worth adding that, not only would Z have had standing, but that if Z had wanted a federal forum for its lawsuit, Z should have filed suit quickly after receiving the threat letter because the initiation of an enforcement action in state court can result in Younger abstention.)

There was no threat letter here, so why does any of this make a difference? The comparison reveals that the real legal basis for the absence of any threat of enforcement is not the “successful facial challenge” in case (1) or (2), but the defendants’ agreement that the statute is unconstitutional and their promise (rather than their legal obligation) not to enforce the statute. The fact that they made this agreement in connection with a stipulated judgment and an order to pay over $20,000 in attorneys’ fees makes their commitment to non-enforcement credible.

This discussion of the reasoning underlying the no-standing dismissal in Platinum Sports is not just idle nitpicking about a minor issue. The effectiveness of agreement about unconstitutionality to preclude standing by eliminating threatened enforcement goes to the very fundamentals of pre-enforcement adjudication of constitutional challenges to constitutionally questionable laws. Consider, for example, a pre-enforcement challenge to a State’s partial-birth abortion prohibition in which the sole theory of constitutional infirmity is that the statute is unconstitutional as applied to performance of the constitutionally protected D&E procedure. (Such a limited claim would be unusual but not completely implausible given the Supreme Court’s statement of a preference for as-applied challenges in this area.) Suppose the Attorney General’s position is that the statute does not criminalize the D&E procedure, but even if it did, the State would never use the statute to prosecute for the performance of a D&E because the Attorney General agrees that the statute would be unconstitutional as applied to D&Es. Suppose that no prosecutor can initiate a prosecution without the AG’s approval. If an agreement not to enforce precludes standing, then there would be no standing to bring this challenge. Or would there be?

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Marc DeGirolami has a post bearing this title over at CLR Forum. The post reports on yesterday’s Fourth Circuit decision in Moss v. Spartansburg County School District Seven. Judge Niemeyer wrote the opinion for the court, in which Judge Gregory and Judge Wynn joined.

Apart from its discussion of substantive Establishment Clause principles, the opinion may be of interest for its assessment of Establishment Clause standing (an area of the law that could probably use some rethinking).

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An important but overlooked case due to be decided tomorrow is First American Financial Corp. v. Edwards. The case is about Article III standing. The Court is reviewing a Ninth Circuit decision that set forth a permissive approach to congressionally created standing. I expect that the Court will view the Ninth Circuit’s approach as too permissive but nevertheless conclude that the plaintiff has standing. If there were five sure votes in the opposite direction, I would have expected to see the decision before now. We shall see soon enough.

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The degree to which the courts become converted into political forums depends not merely upon what issues they are permitted to address, but also upon when and at whose instance they are permitted to address them. As De Tocqueville observed:

“It will be seen . . . that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.”

The great change that has occurred in the role of the courts in recent years results in part from their ability to address issues that were previously considered beyond their ken. But in at least equal measure, in my opinion, it results from the courts’ ability to address both new and old issues promptly at the behest of almost anyone who has an interest in the outcome. It is of no use to draw the courts into a public policy dispute after the battle is over, or after the enthusiasm that produced it has waned. The sine qua non for emergence of the courts as an equal partner with the executive and legislative branches in the formulation of public policy was the assurance of prompt access to the courts by those interested in conducting the debate. The full-time public interest law firm, as permanently in place as the full-time congressional lobby, became a widespread phenomenon only in the last few decades not because prior to that time the courts could not reach issues profoundly affecting public policy; but rather because prior to that time the ability to present those issues at will (to make “wanton assaults,” to use De Tocqueville’s pejorative characterization) was drastically circumscribed. The change has been effected by a number of means, including such apparently unrelated developments as narrowing the constitutionally permissible scope of laws against champerty and maintenance (so that the cause may now more readily seek a victim to represent), alteration in the doctrine of ripeness (so that suits once thought premature may now be brought at once), and–to return to the point–alteration in the doctrine of standing.

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk. Univ. L. Rev. 881, 892-93 (1983).

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Last Friday, the Fourth Circuit dismissed as non-justiciable the appeal of a judgment in a challenge to potential improvements to specific sections of I-81. Judge Wilkinson wrote the opinion for the Court in Shenandoah Valley Network v. Capkawhich was joined in by Judge King and Judge Keenan. The I-81 improvement project will take place in two tiers. This litigation arose at the end of Tier 1, before Tier 2 had run its course. The nub of the dispute was the extent to which decisions made at Tier 1 would foreclose consideration of alternatives at Tier 2. The court concluded that the appellants were mistaken about the extent of foreclosure at Tier 2. The court was satisfied that, once the parties’ positions were clear, there was no actual dispute giving rise to a case or controversy. Accordingly, dismissal was warranted: “Because such [an actual] dispute is lacking here–and because we cannot issue an advisory opinion–we have no authority to adjudicate this suit.” The court also cashed out its justiciability conclusion in standing terms: There was no injury or threat of imminent injury.

One interesting feature of the decision comes in a footnote at the end, in which the court notes that it would not order vacatur of the district court’s judgment: “The gist of the district court’s ruling is that the review process should be allowed to move beyond Tier 1 to Tier 2. Because vacatur is an equitable remedy, U.S. Bancorp Mortg. Co. v. Bonner Mall P’Ship, 513 U.S. 18, 29 (1994), and because the balance of factors reveals no good reason to vacate the district court’s ruling, we decline to do so.” This reasoning, and the court’s careful phrasing of the justiciability problem (i.e., “there remains nothing to dispute” and “no justiciable controversy lingers”) suggests that the justiciability problem was not a pure standing issue, but some combination of mootness (of claims about Tier 1) and ripeness (of claims about Tier 2) .

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Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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The Supreme Court granted a motion last week to add two individuals to the case it will hear addressing the constitutionality of the minimum essential coverage provision in the Affordable Care Act. (See Lyle Denniston’s post on the order at SCOTUSBlog.) This makes it less likely that the Court will need to reach the question whether the States can bring a justiciable challenge to that provision, which imposes obligations on individuals but not on States. That is all for the good, as the States do not have standing.

In the course of reading on an unrelated subject, I came across the following quotation that I thought worth passing along:

If Congress passes a law which exceeds the powers granted to it, the States–now that the doctrine of nullification is dead–do not raise the question of constitutionality, and contend with the national government, but the law goes quietly into the statute-book, and any person who feels aggrieved by it brings it before the courts, as he would the by-law of a railroad company the validity of which he wanted to test.

1 A. Lawrence Lowell, Essays on Government 104 (1890).

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In the previous post, I asked whether a member of an Indian tribe has standing to bring a constitutional challenge to the minimum coverage provision in § 5000A of the tax code (aka the “individual mandate in Obamacare”). A member of an Indian tribe is in an unusual position under § 5000A. She is obligated to have minimum essential coverage, but she is exempt from the penalty for non-compliance. See 26 U.S.C. § 5000A(e)(3). Assuming that the penalty for non-compliance is the only legal consequence for not having minimum essential coverage, I do not see how she would have standing to bring a constitutional challenge to the requirement that she have minimum essential coverage.

If that is right, then what about Mary Brown? She is one of the private plaintiffs in the constitutional challenge to § 5000A to be decided by the Supreme Court. Ms. Brown’s lawyers have notified the Supreme Court that she has filed a petition for bankruptcy. Although there is not enough public information to make a conclusive determination, Ms. Brown’s financial situation probably qualifies her for a penalty exemption in § 5000A(e). If Ms. Brown does fall within one of the penalty exemptions, are there any arguments to support her standing that differ from those available to the member of an Indian tribe?

One that comes to mind is that financial circumstances are subject to change, whereas tribe membership is stable throughout one’s life. If a person’s qualification for exemption varies from month to month, then that person comes in and out of the legal crosshairs of someone with whom one can have a justiciable controversy. This difference is relevant, because someone permanently exempt has no legal adversity with anyone that would give rise to a justiciable controversy. The sometimes-exempt person, by contrast, sometimes does have such legal adversity.

The justiciability problem posed by a sometimes-exempt person is best thought of as a mootness problem rather than a standing problem. The general rule is that standing is assessed as of the time of filing. If the sometimes-exempt person was not exempt as of the time of filing, and the person otherwise had standing, then a change giving rise to that person’s exemption presents a problem of mootness. That doctrine is more flexible than standing. In Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), for example, Justice Ginsburg’s opinion for the Court expressed openness to an “argument from sunk costs.”

That is as far as I’ve taken the analysis for now. As always, I welcome suggestions, corrections, and other comments.

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If the government imposes a legal duty on you, but provides no sanctions for non-compliance (and there are no collateral legal consequences of any sort for non-compliance), do you have standing to challenge the imposition of the duty? That is one question posed by Section 5000A of the tax code, the provision in the Affordable Care Act more popularly known as the individual mandate.

Section 5000A requires “applicable individuals” to have “minimum essential coverage,” and it imposes a penalty on some “applicable individuals” who do not have “minimum essential coverage.” That is, there are some people who are required to have insurance but who are exempt from the penalty for not having it Members of Indian tribes, among others, are beneficiaries of this exemption.

Suppose a member of an Indian tribe wanted to sue the federal government to have the insurance requirement declared unconstitutional. Would he have standing to do so? I have trouble seeing how he would. It is not enough to be subject to allegedly illegal conduct. That conduct must cause injury. If non-compliance with the insurance requirement has no consequences for a member of an Indian tribe, then it does not cause any injury. Perhaps the would-be plaintiff can argue that he will buy insurance to comply with the requirement if it is constitutional because he wants to be in compliance with the law, but he will not buy the insurance if the requirement is unconstitutional. But that cannot be enough, because the “injury” of being forced to buy insurance is entirely self-inflicted; nobody is forcing the would-be plaintiff to do anything.

A better way of thinking about the “case” or “controversy” problem with a challenge by a member of an Indian tribe to the minimum essential coverage provision is in advisory opinion terms. The request for a constitutional ruling is purely advisory because there is no proper defendant who can be brought before the court and bound by a judgment. Nobody has anything to enforce against the would-be plaintiff, who simply seeks advice about whether the insurance requirement is constitutional.

This analysis would require alteration if there were some collateral legal consequences for non-compliance with the insurance requirement. But if the penalty in § 5000A is the only means by which the insurance requirement has any legal bite, there appears to be no Article III “case” that a member of an Indian tribe can bring offensively to challenge the insurance requirement.

I cannot think of the closest analogue to this situation, and cheerfully invite suggestions, corrections, contrary arguments, and so on.

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Just under a month ago, counsel for Mary Brown told the Supreme Court in a letter that her opening brief would explain why she still had standing to challenge the minimum essential coverage provision even though she had recently filed for bankruptcy (and thus would be exempt from the penalty for non-compliance). The opening brief, filed today, asserts that Mary Brown has standing, but provides no argument in support of the claim. With respect to Mary Brown’s standing, the brief states as follows:

After the parties filed their certiorari petitions, Petitioner Brown, whose standing had been conceded by the Government in the Eleventh Circuit (id. 8a), filed a voluntary petition for bankruptcy. See Letter from G. Katsas to D. McNerney (Dec. 7, 2011). Private Petitioners do not believe that Brown’s pending bankruptcy undermines her standing; to the contrary, her worsened financial state exacerbates the degree to which future costs from the mandate are “immediately and directly affect[ing]” her “financial strength[] and fiscal planning.” Clinton v. City of New York, 524 U.S. 417, 431 (1998).

If this is the promised argument, it is sorely lacking. Do the challengers plan on making an argument elsewhere, or do they have no argument to make? The argument should start with an explanation of what future costs imposed by law directly affect the planning of someone who appears to be exempt at present from any future cost imposed by Section 5000A.

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According to the Supreme Court’s December 8 briefing schedule in the challenges to the Affordable Care Act, the opening briefs are due today with respect to everything but the Medicaid issue. Here are a two related non-merits issues to look at in today’s filings:

  1. How does the NFIB’s brief address the standing of the individual plaintiffs? The Wall Street Journal reported back in December on the bankruptcy filing of Mary Brown, who was the only plaintiff that the government conceded had standing to challenge Section 5000A (the minimum essential coverage provision). Ms. Brown’s personal circumstances may render her eligible for an exemption from the penalty for non-compliance with the minimum essential coverage requirement in § 5000A. Earlier this week, the Wall Street Journal reported that the NFIB’s lawyers sought to add as individual plaintiffs two more NFIB members. This is an unusual move, and one that the challengers would not have taken without good reason. (That is not to go so far as to say that the additions should be viewed as an implicit concession about a lack of standing without the to-be-added plaintiffs, only that the lawyers viewed the downside of not seeking to add plaintiffs as higher than the downside of doing so.) In a letter filed with the Supreme Court disclosing Ms. Brown’s bankruptcy, the private plaintiffs said that they would explain in their opening brief why Ms. Brown still had standing. Today is the day they will make good on that promise.
  2. How does the court-appointed amicus curiae address the Anti-Injunction Act issue? There are several arguments that Mr. Long can make, and it will be interesting to see his assessment of their relative strength by their positioning in the brief.

These two issues may look unrelated on their face, but there is a connection between the AIA issue and Ms. Brown’s standing. One of the arguments that the challengers have previously advanced is that they are challenging the requirement to have insurance but not the penalty for non-compliance. In their view, the mandate is a “free-standing legal requirement” while the penalty is a means of enforcing it. Presumably, this assertion about the internal separability of §5000A with respect to the mandate and the penalty will also be part of the argument for Ms. Brown’s standing. The argument would presumably be that, although Ms. Brown’s financial hardship exempts her from the penalty (under § 5000A(e)), she is still subject to the legal requirement to have minimum essential coverage.

I’m skeptical that these arguments resting on the internal separability of § 5000A succeed. But I will withhold judgment until I see the best presentation of these arguments in the challengers’ briefs.

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In the last two weeks of 2011, the Fourth Circuit issued five unpublished opinions after argument, two in criminal cases and three in civil cases, all unanimous. The court affirmed in three cases, reversed in one, and affirmed in part and vacated in part in the fifth case.

In United States v. Davis, the court affirmed denial of a motion to suppress notwithstanding the appellant’s argument that the officers extended the scope and duration of a traffic stop beyond the circumstances justifying it. A panel consisting of Judge Niemeyer, Judge Duncan, and Judge Floyd issued  a per curiam opinion.

In United States v. Buczkowski, a panel consisting of Chief Judge Traxler, Judge Agee, and Judge Diaz reduced twenty-seven counts of transporting child pornography down to one. The unpublished per curiam opinion begins as follows:

Daniel Buczkowski was convicted of one count of possessing  child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twenty-seven counts of transportation of child pornography in  interstate or foreign commerce, see 18 U.S.C. § 2252(a)(1).  Buczkowski appeals, challenging the convictions and sentences imposed on the transportation counts only. While we find the  government’s evidence sufficient to establish that Buczkowski transported child pornography, that evidence established only a  single act of transportation. Accordingly, we affirm the  conviction and sentence on the first transportation count,  vacate the remaining transportation convictions and sentences, and remand for resentencing.

In Miller v. Montgomery County, the Fourth Circuit affirmed a dismissal for lack of standing. Miller sought to challenge the denial of an application for an exemption from Montgomery County’s Conservation Law relating to certain trees that Miller intended to harvest, but the landowner rather than Miller signed the application. Judge Keenan wrote the opinion, in which Chief Judge Traxler and Judge Gregory joined.

In Young Again Products, Inc. v. Acord, the Fourth Circuit affirmed the imposition of sanctions and a civil contempt order. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Motz concurred.

In Trice, Geary & Myers, LLC v. CAMICO Mutual Insurance Company, a Fourth Circuit panel unanimously reversed a grant of summary judgment in favor of an insurance company, holding that claims brought against a policyholder triggered a duty to defend. Judge Wynn wrote the opinion, in which Judge Gregory and Judge Diaz joined.

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The Supreme Court heard oral argument last week in First American Financial Corp. v. Edwards. The case calls on the Supreme Court to address the relationship between Article III standing and federal causes of action for statutory damages. The Federalist Society recently posted my post-argument podcast on the case.

I don’t have a confident prediction about how the Supreme Court will decide the case. But with four Justices virtually certain to find standing (Breyer, Ginsburg, Kagan, and Sotomayor), the challenge for petitioners is to gain the votes of all of the remaining five Justices. (In this sense, the case is like the upcoming health care cases, and many others.)

The decision will depend on whether all five Justices that petitioners need are persuaded that the interest protected by the statute is sufficiently distinct from the interests protected by well-established causes of action that do not require the plaintiff to show consequential harm.

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The Fourth Circuit issued two published opinions in argued cases today. Judge Wynn authored both opinions, which were unanimous.

At issue in Creekmore v. Maryview Hospital was the admissibility, under Virginia Code § 8.01-581.20, of the testimony of an OB-GYN about the standard of care for a nurse’s postpartum monitoring of a high-risk patient with preeclampsia. The district court admitted the testimony and the court of appeals affirmed. The panel deciding the appeal consisted of Judge Wilkinson, Judge Wynn, and Judge Floyd.

In CGM, LLC v. BellSouth Telecommunications, the Court of Appeals held that a billing agent for competitive LECs lacked statutory standing to bring an action for declaratory relief against an incumbent LEC regarding the claim that the ILEC failed to pass on to CLECs the full value of discounts offered by the ILEC to its customers. No CLECs were parties in the case. Some key language:

CGM has no interconnection agreement with BellSouth. CGM has not brought this suit pursuant to any interconnection agreement. And no party to an interconnection agreement is a plaintiff in CGM’s suit. Because Section 251(c)’s resale duties and the related 47 C.F.R. § 51.613 are not free-standing but exist, to the extent that they do at all (given parties’ freedom to contract around them), only as embodied in interconnection agreements, CGM has no rights, and BellSouth no duties, under the circumstances of this case.

Although decided on statutory standing grounds, this case has some echoes of the Fourth Circuit’s decision on Article III standing in Neese v. Johanns:

In this case, any claim to a specific sum of money must flow from the contractual relationship between the Secretary and the producer. See 7 U.S.C. § 518b(a) (“The Secretary shall offer to enter into a contract . . . under which the producer of quota tobacco shall be entitled to receive payments under this section. . . .”) (emphasis added). Appellants, however, cannot maintain such a claim. After accepting the Secretary’s offer of payment contracts without reservation and entering into those contracts, they transferred all their rights under those contracts to third parties. Quite simply, appellants have no rights left to invoke and, therefore, lack standing to pursue further contracts or payments from the Secretary.

Procedure buffs may be interested in noting the court’s conclusion that a motion to dismiss for lack of statutory standing is properly brought under FRCP 12(b)(6) rather than FRCP 12(b)(1). It is also worth noting how easily the court dispatched the attempt to rely on the Declaratory Judgment Act as a free-standing cause of action.

The panel deciding CGM consisted of Judge Shedd, Judge Wynn, and Senior Sixth Circuit Judge Keith.

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As speculation continues to swirl about the timing and ultimate focus of Supreme Court review of the various rulings to date in the healthcare litigation, the time is ripe for consideration of the procedural aspects of that litigation. Although scholarly and popular attention has focused largely on the constitutional merits, the litigation over the healthcare legislation has raised important questions about the role of states as litigants, the distinction between facial and applied challenges, severability, the federal tax Anti-Injunction Act, and other issues. The University of Richmond Law Review’s 2011 Allen Chair Symposium will bring together experts from state government and academia to explore these important but unheralded issues and to situate the litigation in the broader political and regulatory landscape.

The symposium will take place on November 11, 2011 at the University of Richmond Law School. Details on registration and attendance are available here, with more information about the schedule in the conference brochure.

There are three panels scheduled:

9:30 A.M. The Role of States as Litigants in the Mandate Litigation
E. Duncan Getchell, Jr., Solicitor General of Virginia
William F. Brockman, Acting Solicitor General of Maryland
William P. Marshall, William Rand Kenan, Jr., Distinguished Professor of Law, University of North Carolina School of Law

11:15 A.M. Defining the Scope and Legal Effect of the Challenges to the Individual Mandate
Edward A. Hartnett, Richard J. Hughes Professor, Seton Hall University School of Law
Tobias A. Dorsey, Special Counsel for the United States Sentencing Commission (USSC)
Kevin C. Walsh, Assistant Professor of Law, University of Richmond School of Law

2:00 P.M. Situating the Mandate Litigation in the Broader Regulatory and Political Landscapes
Bradley W. Joondeph, Santa Clara University School of Law, Creator of the ACA litigation blog
A. Christopher Bryant, Professor of Law, University of Cincinnati College of Law
Elizabeth Weeks Leonard, Associate Professor of Law, University of Georgia Law

(For those attending the Federalist Society’s National Lawyers’ Convention, sorry for the conflict. Proceedings will be made available via live webcast for any unable to attend, and the papers will be published in a spring edition of the University of Richmond Law Review.)

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Virginia filed a federal lawsuit challenging a federal statute as unconstitutional and seeking to vindicate a state statute. It takes a special perspective for someone to view that federal-court filing as some type of indicator that the Commonwealth may have forgotten that the Civil War is over. Linda Greenhouse appears to have that special perspective, as her most recent Opinionator column reveals. (By the way, does the New York Times have a macro such that any story it runs on the Fourth Circuit must contain something about how the court sits “in the heart of the old Confederacy”?)

My problem is not with the substance of Greenhouse’s claim that Virginia lacked standing to sue the federal government. My problem is with the framing and tone.  Reading Greenhouse’s column reminded me of reading portions of Justice Kennedy’s opinion in Gonzales v. Carhart, 550 U.S. 124 (2007). In these writings of Greenhouse and Kennedy, quasi-constitutional moralism not only distracts from the soundness of the underlying constitutional determination, but also provides unnecessary fodder for disagreement.

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Eugene Volokh reports that Georgetown Law’s Nicholas Rosenkranz will be guest-blogging on the Volokh Conspiracy about The Subjects of the Constitution and The Objects of the Constitution, two articles by Rosenkranz that appear in the Stanford Law Review.

I admire the ambition of these articles, which are more ambitious than anything I’ve attempted to date. But I have some pretty fundamental disagreements with their substance. While I’ve been meaning to think through some of these disagreements in a careful scholarly analysis, I have not had a chance to turn to that yet. Accordingly, I look forward to Rosenkranz’s posts. Perhaps the posts will dispel some of my concerns. If not, I suspect they will help me to understand our differences better. 

The constitutional challenges to the individual mandate in the Affordable Care Act seem as good a place as any to figure out how a theory of judicial review cashes out. One question that I will have in mind as I read the posts and comments will be this: What does Rosenkranz’s theory of judicial review say about the who, what, and when of challenging the individual mandate in federal court? 

This admittedly compound question has three parts that focus on three different aspects of judicial review: “Who” relates to standing; “what” relates to substance; and “when” relates to timing. 

An aggressive reading of Rosenkranz’s articles indicates that the best combined answer is: (1) anyone subject to any aspect of the Affordable Care Act; (2) can challenge the individual mandate; (3) immediately upon enactment of the Affordable Care Act into law.

If this combination of answers is right under Rosenkranz’s theory, then Rosenkranz’s theory must be wrong. Or so I believe at present. 

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It is to be expected that those on the losing end of the Fourth Circuit’s unanimous dismissal of Virginia’s challenge to the individual mandate have criticized the opinion in Virginia v. Sebelius.

There is nothing to criticize about engaging in such criticism. One of the most beneficial functions that lawyers and others can serve is to criticize judicial opinions. These opinions do not come down from Mt. Olympus but from fallible human beings like you and I.

The surprising aspect of the criticism is its focal point, which is Judge Motz’s renunciation of a theory that would enable a state to become a “roving constitutional watchdog” litigating generalized grievances in federal court.

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This post continues consideration of the alternative state standing theories advanced in Florida v. HHS but not yet ruled on by any federal court. An earlier post addressed the states’ lead standing theory, which is based on expenditures expected to result from the choices of some individuals to comply with the mandate by enrolling in Medicaid.

The States’ second standing theory relies on the asserted inseverability of the individual mandate from other statutory provisions that directly affect the States. Their Eleventh Circuit brief argues:

[T]he States have standing because they have alleged that the  individual mandate renders the entire Act invalid on non-severability grounds. The  States have standing to raise that argument so long as they allege that any of the  Act‘s provisions causes them injury in fact, as such injury would be remedied by a  declaration that the Act is invalid. See Brock, 480 U.S. at 684 (adjudicating claim that entire statute was invalid as a result of unconstitutional legislative veto  provision, where plaintiffs alleged injury based on other portions of the statute). The States have plainly demonstrated injury in fact caused by the Medicaid and employer mandate reforms, and therefore have standing to seek invalidation of the Act on the ground that the individual mandate is unconstitutional.

In short, the States attempt to use inseverability to leverage their standing to challenge a part of the Act that does apply to them into standing to challenge a part that does not.

I have argued in my Eleventh Circuit amicus curiae brief and in my draft law review essay that this attempted use of inseverability doctrine is unprecedented and impermissible. I will not repeat those arguments word for word here, but instead set forth some of the key moves in the analysis.

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Regardless of what one thinks about the constitutionality of the individual mandate in the Affordable Care Act, there appears to be an emerging bipartisan consensus that (1) its constitutionality should be resolved by the Supreme Court, and (2) the Supreme Court should act sooner rather than later (i.e., by the end of the October 2011 Term rather than in some later term). For example, the news coverage here in Virginia after yesterday’s rulings dismissing Virginia’s challenge and dismissing Liberty University’s challenge included statements urging Supreme Court review by both Republican Governor Bob McDonnell and Democrat Senator Mark Warner (relevant statements quoted below if you don’t want to click through).

In light of yesterday’s rulings, however, there is a real possibility that the Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate. Challenges by the states have been dogged by questions about jurisdiction from the outset. The Fourth Circuit’s answer to some of those questions knocked out Virginia’s case. The 26-state mandate challenge in Florida v. HHS has so far dodged jurisdictional bullets because of the presence in that case of private parties, whose standing to challenge the mandate has generally been accepted by the federal courts. But yesterday’s Fourth Circuit ruling in Liberty University v. Geithner has breathed new life into a private-plaintiff jurisdictional problem that the parties to the mandate challenges had left for dead. Specifically, the Fourth Circuit held that the Tax Anti-Injunction Act prohibited individuals subject to the mandate from bringing a pre-enforcement challenge because such a suit was one to restrain the assessment or collection of a tax.

If there is a jurisdictional problem preventing both the private plaintiffs (who are subject to the individual mandate) and the State plaintiffs (who are not subject to the individual mandate) from having a federal court hear their constitutional challenges, then the Supreme Court cannot get to the merits of the mandate challenges any time soon.

One response may be to hope that the Supreme Court reads the Tax Anti-Injunction Act differently from the Fourth Circuit. That response may rest on wishful thinking. I need to study the relevant precedents more closely than I have previously, but Judge Motz’s opinion strikes me as persuasive. (See also the amicus brief filed by two former Commissioners of the IRS, Mortimer Caplin and Sheldon Cohen.)

In any event, there is no need to take a chance and rest the possibility of a mandate-challenge merits decision on speculation about how the Supreme Court will resolve the legal uncertainty about application of the Tax Anti-Injunction Act. The Act sets forth a statutory limitation that Congress can and should change to allow a pre-enforcement challenge to the individual mandate. Importantly, it appears that Congress can make this change effective immediately and can make clear that the change preserves jurisdiction over private-party challenges to the individual mandate that have already been filed. See Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006) (“We have in the past ‘applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.'”), quoting Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); see also Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994) (“[I]n Andrus v. Charlestone Stone Products Co.436 U.S. 604, 607-608, n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount in controversy requirement for federal question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was ‘now of no moment.'”). (My assessment of the legal soundness of a “retroactive” jurisdictional cure is based on just a little bit of digging around thus far, and I have not yet vetted the assessment with others, but the foregoing authorities appear to support it. Critical commentary is, of course, welcome on this or any other aspect of the post.)

In sum: The constitutional merits of the challenges to the individual mandate have divided largely (though not cleanly) along party lines, but there appears to be bipartisan agreement that the merits should be decided soon. A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.

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Statement by Gov. McDonnell (R-VA) on the need for prompt Supreme Court review of the constitutionality of the individual mandate:

“As federal courts across the country continue to come to differing conclusions on the merits of cases arguing the unconstitutionality of the federal health care law, today’s decision further exemplifies why these cases should be expedited to the nation’s highest court.  It is the Supreme Court that will ultimately determine whether the federal mandate on every citizen to purchase health insurance violates the U.S. Constitution.  States and businesses continue to expend time and money and languish in uncertainty as they try to come into compliance with a law that may ultimately be ruled unconstitutional. It is exasperating that the President and the Justice Department oppose a prompt resolution of this case through an expedited appeal.  America needs finality in this case.”

Statement by Sen. Mark Warner (D-VA) on the desirability of prompt Supreme Court review of the constitutionality of the individual mandate:

“This is going to end up getting decided by the Supreme Court and candidly, I hope, the sooner the better. I do believe there are a lot of parts of the health care reform law that make sense. I think there are some parts that need to be corrected.”

[Note: The Warner quotation comes directly from the linked video. The accompanying text misquotes Sen. Warner.]

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The Fourth Circuit’s dismissal of Virginia’s challenge to the individual mandate in the Affordable Care Act rests on a straightforward understanding of the limited power of federal courts to resolve questions of constitutional law. Federal courts do not resolve abstract disputes or issue advisory opinions; they resolve only cases or controversies. And there was no case or controversy between Virginia and the federal government regarding the enforceability of the individual mandate.

In their responses to the ruling, Virginia Governor Bob McDonnell and Virginia Attorney General Ken Cuccinelli have painted the decision as a blow to federalism, with a federal court showing disrespect to state legislation.

Governor McDonnell:

” To dismiss a Virginia statute as a basis for standing, declaring it to be ‘quintessentially political,’ and asserting that a state cannot be a ‘constitutional watchdog’ undermines our precious principles of federalism.”

Attorney General Cuccinelli:

“Not only does the court’s opinion reject the role of the states envisioned by the Constitution, it dismisses an act of the Virginia General Assembly—the Health Care Freedom Act—as a mere pretense or pretext. It is unfortunate that the court would be so dismissive of a piece of legislation that passed both houses of a divided legislature by overwhelming margins with broad, bipartisan support.”

These responses miss the mark. The Fourth Circuit reasoned that Virginia did not identify “any plausible, much less imminent, enforcement of the [Virginia Health Care Freedom Act] that might conflict with the individual mandate.” The court properly concluded that to use such a law as a basis for asking a federal court to opine on the validity of a provision of federal law that is unenforceable against the state “would convert the federal judiciary into a ‘forum’ for the vindication of a state’s ‘generalized grievances about the conduct of government.'”

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If the Fourth Circuit’s interpretation of the Anti-Injunction Act were to be adopted by the Supreme Court, that would knock out all the private party challenges to the individual mandate. That would return attention to the question of whether the states’ challenge to the individual mandate is justiciable.

The Virginia approach of relying on a conflicting state statute has all sorts of problems, including those identified by the Fourth Circuit in Virginia v. Sebelius.

The states in Florida v. HHS have developed additional theories of standing that do not require conflicting state statutes. They have done so because necessity is the mother of invention; the necessity arises from the simple fact that most of the state plaintiffs seeking to challenge the individual mandate do not have an anti-mandate state law like Virginia’s Health Care Freedom Act.

I have argued in an amicus curiae brief in the Eleventh Circuit and in The Ghost that Slayed the Mandate that Florida’s alternative theories do not succeed in establishing the justiciability of the states’ challenge to the individual mandate. The Eleventh Circuit said it did not need to address state standing. The issue was “purely academic,” said they, because at least one private plaintiff had standing and one is enough. I criticized that reasoning in an earlier post that focused on the relationship between inseverability and standing.

I can now add another criticism: It may very well be that there is no subject-matter jurisdiction over the private plaintiffs’ challenges because of the Anti-Injunction Act. If the AIA blocks the private plaintiff challenges, then the only way to reach the merits is by adjudicating the states’ challenge to the individual mandate. The states can likely get around the AIA with South Carolina v. Regan, 465 U.S. 367 (1984). Consequently, the jurisdictional action going forward should focus not only on the AIA but also on the states’ theories for why they can challenge a statutory provision that imposes no obligation on them.

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It is a striking feature of Virginia v. Sebelius that Judge Hudson’s decision holding the individual mandate unconstitutional had no legal effect on anybody subject to the individual mandate.

The general rule (with exceptions not relevant here) is that a judgment binds only the parties. See, e.g.Taylor v. Sturgell, 553 U.S. 880, 893 (2008). That binding effect does not amount to much in a case like Virginia v. Sebelius because the sole party challenging the individual mandate is a party against whom it could not be enforced.

Nor would the district court’s judgment in Virginia v. Sebelius have any binding effect in a later case. A private individual in a later suit could not wield the decision against the federal government through the doctrine of nonmutual offensive issue preclusion, because that doctrine cannot be used against the federal government. See United States v. Mendoza, 464 U.S. 154, 162-63 (1984). Moreover, the district court’s decision set no precedent binding in later cases, because “federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.” Am. Elec. Power Co., Inc. v. Conn., ___ S.Ct. ___, 564 U.S. ___ (2011).

When a judgment about the constitutionality of a provision of federal law has no binding legal effect on anybody subject to that provision of federal law, that is a good sign that something has gone amiss. The federal judiciary sits to resolve cases, not to decide abstract questions of constitutional validity. To amount to a “case of actual controversy” under the Declaratory Judgment Act and under Article III, a lawsuit must “‘admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'” MedImmune , Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). Virginia v. Sebelius fails this test, as the judgment’s absence of any binding effect on anybody subject to the individual mandate reveals.

The one remedy that could have an effect on Virginia residents subject to the individual mandate would be an injunction prohibiting the federal government from enforcing the mandate against Virginia residents. Were Virginia to seek such an injunction, Virginia would be acting to protect its citizens from the operation of federal law. That is, Virginia would be acting in a parens patriae capacity. The problem with seeking this remedy, however, is that the binding Supreme Court precedent of Massachusetts v. Mellon prohibits states from suing the federal government in a parens patriae capacity–as Virginia has conceded.

It is black-letter law that “a plaintiff must demonstrate standing separately for each form of relief sought.” DaimlerChrysler v. Cuno, 547 U.S. 332, 352 (2006). The parties in Virginia v. Sebelius vigorously contest whether Virginia’s asserted injury to its sovereignty is judicially cognizable. Even if it is, however, the injury is not redressable. Given the unavailability of the one remedy that could actually prevent the federal government from enforcing the individual mandate in Virginia, Virginia cannot show how a judgment in its favor would redress the claimed injury to its sovereignty. Because the district court judgment sets no precedent and cannot be used to prohibit the federal government from enforcing the individual mandate against Virginia residents who wish to wield it against the federal government using non-mutual offensive issue preclusion, Virginia could win (as it did in the district court) and the asserted injury to its sovereignty would remain unremedied.

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Several federal appellate courts have concluded that various State suits arguing against the preemptive effect of federal law present a “case” or “controversy” within Article III. At least some of those decisions are undoubtedly correct. The problem in Virginia v. Sebelius is not that a State’s interest in avoiding preemption never suffices for standing, but rather that a words-on-paper conflict between state and federal law (i.e., a conflict considered apart from the application of state and federal law) is not enough to constitute a “case” or “controversy” under Article III.

In a prior post, I argued that it is a mistake to equate a State’s standing to defend state law with the existence of an Article III “case” or “controversy” whenever there is a words-on-paper conflict between state and federal law. This post addresses how to reconcile that argument with other federal court decisions allowing States to proceed as plaintiffs challenging the preemptive effect of federal law.

The basic difference between those cases and Virginia v. Sebelius is that those cases involved the federal government using federal law to do something to the State, as a State, whereas the individual mandate does nothing to the State, as a State. The individual mandate is not enforceable against the State, only against individuals. There is nothing that a federal official, wielding the individual mandate against Virginia, can do to Virginia. Nor is there any way for Virginia to “enforce” the Health Care Freedom Act against the federal government. Virginia has argued that there are two circumstances in which Virginia’s Attorney General can enforce the Health Care Freedom Act through an action for injunctive relief. First, the Attorney General could bring suit against a locality that required the purchase of insurance. Second, the Attorney General could bring suit against an employer that required employees to purchase insurance as a condition of employment. Assuming that the Attorney General is right about his authority to bring these actions, neither type of enforcement action has anything to do with the federal government. In those actions, the federal government would not be a necessary party, and the existence of the minimum essential coverage provision in the Affordable Care Act would pose no obstacle to the State’s interest in creating and enforcing its legal code.

The situation in the other federal court decisions authorizing States to sue the federal government to avoid preemption differ in a number of respects, as I explained in my Fourth Circuit amicus curiae brief, excerpted (with citations to the relevant cases) below.

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