Legal Commentary

Yes, according to Kevin Walsh (Richmond), whose new essay argues that there is no statutory subject matter jurisdiction over the two state-initiated actions challenging the individual mandate--one brought by Virginia in the Eastern District of Virginia, the other by about twenty states (led by Florida) in the Northern District of Florida. Walsh makes three basic arguments: 1) Under Franchise Tax Board and Skelly Oil, there is no jurisdiction over a claim by a state for a declaration of the validity of its own laws as against possible preemption; 2) Under Skelly Oil, there could be no jurisdiction over a claim by a state (or any other party) for equitable relief against a provision of federal law that does not regulate its conduct, because the state never could have brought a coercive action; and 3) Parties cannot use the inseverability doctrine to invalidiate an entire statute unless they first show the unconstitutionality of a provision that applies to them. He then goes on to explain why the unavailability of federal judicial review here is a good thing--it keeps the federal courts out of a political mess between the federal government and the states, particularly where the state officials bringing the actions are, wholly or partially, politically motivated.

This is a great, quick-hitter, get-in-get-out paper. And I think his reading of the relevant cases is correct--and so (presumably perhaps, although you never know for sure) do a bunch of top-notch fed courts people listed in the author's footnote, including Jim Pfander, Richard Fallon, Jack Preis, Caleb Nelson, Joseph Blocher, and Abbe Gluck.

So the question is why no one--particularly not the U.S.--has raised this issue before. My guess is the explanation is political. The Administration does not want to win on jurisdictional grounds (and thus does not want to argue jurisdictional grounds) because that would be seen publicly and politically as a defeat. It needs to win on the merits--and it needs to win on the merits overwhelmingly. Walsh discusses the media coverage of the Virginia district court decision striking down the mandate as calling that one case a defeat for the President, even though two other district courts upheld it (including in the one case that, under Walsh's argument, actually belongs in federal court). The impact of the "defeat" overwhelmed the numerically greater "victories." A jurisdictional win would play (at least outside of the fed-courts-prof community, important as we are) as winning on a "technicality"--and thus really losing by being unwilling or unable to take on and defeat the arguments of Virginia AG Ken Cuccinelli.

There also is an interesting interplay at work among several constitutional and jurisdictional issues. First, Virginia lacks standing (as a jurisdictional or prudential matter, is not clear) to bring a parens patriae action asserting the rights of its citizens. Thus, the state had to create standing by enacting a piece of legislation declaring that citizens of Virginia are not required to purchase health insurance, then seeking a declaration that the state law is not preempted by PPACA because PPACA (or at least the individual mandate) is unconstitutional--this is what Walsh says is not subject to district court jurisdiction. And the third issue is the power of a state to enact purely declaratory, non-obligating legislation. As Walsh notes, all Franchise Tax Board really does is delay resolution of the preemption question--rather than seeking a declaratory judgment that state law is not preempted, the state must bring an enforcement action and deal with the preemption defense in that action. But that option is unavailable to Virginia here, because the law it enacted is not enforceable against anyone, since it imposes no obligations on anyone. But this suggests, perhaps, that state nullification, if it is to occur, must be done through more than symbolic declarations that federal law does not apply in its geographic borders.

To borrow a phrase, Download it while it's hot!