The panel’s questioning of the advocates in Virginia v. Sebelius about the asserted lack of federal jurisdiction over Virginia’s claim was more one-sided in favor of the federal government than the same panel’s questioning in Liberty University v. Geithner about the constitutionality of the individual mandate.
My initial observation, at the argument itself, was that the panel seemed uninterested in the potential absence of statutory jurisdiction, but rather focused exclusively on the absence of Article III jurisdiction–particularly, the absence of standing. In re-listening to the argument, however, there are definite indications that the judges are paying attention not only to the constitutional aspects of the problem, but also to the statutory aspects of the problem. And that makes perfect sense. Virginia’s use of the declaratory judgment mechanism to assert its abstract sovereignty interest has given rise to a lawsuit outside of the statutory and Article III jurisdiction of the federal courts.