Posts Tagged ‘Virginia v. Sebelius’

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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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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When the Fourth Circuit released its opinions in Virginia v. Sebelius and Liberty University v. Geithner on September 8, the opinions were in manuscript form (i.e., double-spaced, Courier). Today, the Fourth Circuit has released the opinions in the normal format for published opinions in the Fourth Circuit (here for Virginia v. Sebelius and here for Liberty University v. Geithner). Why the lag? Because it takes time to format these opinions, and the public is better off having them in manuscript form rather than waiting for all the formatting. That formatting took an extra-long time in these cases given the number of amici curiae. To get a sense of how different these cases were, a typical Fourth Circuit opinion will begin near the bottom of the first page or the top of the second page (depending on how much room the caption and other descriptive information takes up). By contrast, the text of Judge Motz’s opinion for the panel in Virginia v. Sebelius does not begin until page 41.

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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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Virginia’s basic argument for standing to challenge the individual mandate rests on the Attorney General’s authority to defend state law. Virginia’s Health Care Freedom Act provides generally that no person shall be required to obtain or maintain health insurance, while the federal minimum essential coverage provision (or individual mandate) in the Affordable Care Act imposes a penalty on individuals who do not possess a required level of insurance. The Attorney General argues that these two laws conflict, and that Virginia is entitled to file a lawsuit seeking to vindicate state law against the conflicting federal law.

For standing, the Attorney General relies on Virginia’s interest in “the exercise of sovereign power over individuals and entities within [its] jurisdiction,” which “involves the power to create and enforce a legal code, both civil and criminal.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). Observing that valid federal law trumps state law to the extent of actual conflict, the Attorney General argues that  Virginia can attack the federal law because “a State has standing to defend the constitutionality of its statute.” Diamond v. Charles, 476 U.S. 54, 62 (1986).

A fundamental error in the Attorney General’s standing analysis is the equation of a State’s authority to defend its law when attacked in a case or controversy with the existence of a case or controversy any time federal law and state law conflict on paper.

A consideration of Diamond v. Charles—the Attorney General’s principal modern authority on state sovereign standing—illustrates the difference. Illinois enacted a statute regulating abortion. Doctors who performed abortions challenged that statute as unconstitutional in federal court. Diamond, a doctor opposed to abortion, intervened on the State’s side to defend the law. The district court preliminarily, and later permanently, enjoined various provisions of the challenged law while declining to enjoin all of the challenged provisions. The Court of Appeals affirmed the injunction against enforcement of three provisions and further held that an additional provision should be enjoined. Illinois chose not to appeal to the Supreme Court, but intervenor-defendant Diamond filed a notice of appeal and jurisdictional statement. The Supreme Court held that, in the absence of an appeal from Illinois, there was no case or controversy upon which it could rule. The Court reasoned that, “[b]ecause the State alone is entitled to create a legal code, only the State has the kind of ‘direct stake’ identified in [the Court’s standing doctrine] in defending the standards embodied in that code.”

Diamond v. Charles does support the claim that a state has standing to defend its laws that others may lack. But it does not follow that a State has standing as a plaintiff to bring a suit to vindicate its law from conflicting federal law. The case or controversy in Diamond v. Charles did not depend on an abstract conflict between state and federal law. Rather, as the Supreme Court noted, the case or controversy was “[t]he conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law.” The analogous “case” or “controversy” in the individual mandate context would be one between federal officials empowered to enforce the individual mandate and private parties subject to that mandate, not a State action against federal officials to challenge a provision not enforceable against the State.


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In keeping with prior practice of flagging well-written student notes related to topics covered on this blog, consider taking a look at Securing State Sovereign Standing, by Katherine Mims Crocker, forthcoming in the November 2011 issue of the Virginia Law Review. The note brings conceptual clarity to a confusing area of standing doctrine, and argues that Virginia “possesses sovereign standing” in its challenge to the individual mandate in the Affordable Care Act. The note endorses the standing holding of Judge Hudson’s decision rejecting the federal government’s motion to dismiss for lack of jurisdiction in Virginia v. Sebelius, and some of the subsidiary arguments supporting it. The note also takes on some of the federal government’s arguments for dismissal for lack of standing on appeal to the Fourth Circuit.

I disagree with the note’s conclusion with respect to standing in Virginia v. Sebelius, as well as some of the subsidiary arguments. But I agree with the note’s careful reading of Massachusetts v. Mellon as rejecting not only parens patriae standing, but also sovereign interest standing.

My jurisdictional analyses of Virginia v. Sebelius (in this amicus brief and this draft law review essay) have not focused directly on state sovereign standing, but on statutory subject-matter jurisdiction, advisory opinion doctrine, and the redressability prong of standing analysis. Because so much of the Fourth Circuit argument and the Virginia Attorney General’s defense of jurisdiction depends on arguments about state sovereign standing, I aim to devote some future posts to addressing the topic more directly than I have in the past.

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Now that the Fourth Circuit panel that heard oral argument in Virginia v. Sebelius and Liberty University v. Geithner has disposed of the other two appeals heard that same morning, one can use the panel’s actions in those cases to speculate about the authorship of the opinions in the two challenges to the individual mandate. My best guess is that Judge Motz was assigned to author the principal opinion in Liberty University v. Geithner and that Judge Davis was assigned to author the principal opinion in Virginia v. Sebelius. This is all speculative, of course, but there is a long and glorious tradition of speculating about opinion authorship in appellate cases.


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