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.
In seeking to establish its standing before the District Court, Virginia cited cases involving provisions of federal law that imposed obligations directly on the State or governmental officers within the State. Because the individual mandate imposes no such obligation, however, these cases provide no support for concluding that Virginia’s challenge to the individual mandate is justiciable.
Virginia also cited, and the District Court relied on, a different set of equally distinguishable cases: lawsuits brought by States challenging federal agency action under federal statutory regimes providing an explicit cause of action to challenge that action, such as the Administrative Procedure Act. These cases differ from Virginia’s lawsuit in three important ways. First, the States in those cases relied on statutes other than the Declaratory Judgment Act to bring their claims. Second, by virtue of the way in which the various statutory causes of action were defined, those cases involved the legality of a particular action by an agency of the federal government that had interfered with some particular activity of the State itself (such as issuing permits, promulgating regulations, or undertaking enforcement actions). Third, by virtue of the particularized nature of these matters, they involved an adverse officer or agency whose action could be declared void or enjoined to redress the injury that the federal government’s particular challenged action had inflicted on the State. None of these features is present in this case.
Virginia has no statutory basis for judicial review apart from the Declaratory Judgment Act; it complains of no particular agency action that could be directed against it; and the relief that it seeks could not, in any event, redress its asserted injury.
 See Printz v. United States, 521 U.S. 898, 904 (1997) (addressing constitutionality of federal statute that purported to “direct state law enforcement officers to participate” in federal background check programs); New York v. United States, 505 U.S. 144, 150 (1992) (addressing constitutionality of federal statute that forced upon States the choice of “either accepting ownership of [nuclear] waste or regulating according to the instructions of Congress”).
 See Virginia v. Sebelius, 702 F. Supp. 2d at 606-07 (citing Alaska v. U .S. Dep’t of Transp., 868 F.2d 441, 443 n.1 (D.C. Cir. 1989), and Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008)); Mem. of Pl. in Opp’n to Mot. to Dismiss at 16 [JA 116] (citing Alaska, 868 F.2d at 443-45, Texas Ofc. of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999), Ohio v. U.S. Dept. of Transp., 766 F.2d 228. 232-33 (6th Cir. 1985), and Wyoming, 539 F.3d at 1242).
 See Wyoming, 539 F.3d at 1242-44 (engaging in judicial review of ATF determination pursuant to APA section 704, which states that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review”); Texas, 183 F.3d at 405 (engaging in judicial review of final orders of the Federal Communications Commission pursuant to the Communications Act, 47 U.S.C. § 402(a), and 28 U.S.C. §§ 2342 and 2344); Alaska, 868 F.2d at 444-45 (engaging in judicial review of orders of the Department of Transportation pursuant to the APA and the Aviation Act, which includes “a body politic” or a “representative thereof” within the class of persons entitled to judicial review); Ohio, 766 F.2d at 232-33 (engaging in judicial review of a regulation and interpretive rule pursuant to the APA and the Hazardous Materials Transportation Act).
 See Wyoming, 539 F.3d at 1238-44 (concluding that State could challenge ATF determination regarding the legal effect of concealed weapons permits issued by the State); Texas, 183 F.3d at 408-09 (describing challenges to order setting terms of state regulatory and enforcement authority over various aspects of telecommunications); Alaska, 868 F.2d at 442-43 (explaining how challenged Department of Transportation orders interfered with State enforcement of deceptive advertising laws against tour operators); Ohio, 766 F.2d at 229-33 (describing federal regulations that prohibited enforcement of state regulation requiring prenotification for shipments of hazardous materials, resulting in threatened injury to Ohio’s enforcement of its safety laws).