Friday, February 11, 2011
Walsh on the lack of subject matter jurisdiction in Virginia v. Sebelius
Professor Kevin Walsh (University of Richmond) has posted a fascinating article on SSRN (which you can access here) arguing that the federal courts lack statutory subject matter jurisdiction in Virginia v. Sebelius. More specifically, Walsh contends that the Supreme Court's prior interpretations of the Declaratory Judgment Act preclude a state from seeking a declaration that its law is not preempted by federal law. A state would have standing to seek such a declaration if it would also have standing to seek an injunction, but a state has no right to seek coercive relief against the federal government in the enforcement of federal law against the states' citizens. Hence, there is no jurisdiction. (Presumably this applies to the states in Florida v. HHS as well, insofar as they are challenging the minimum coverage requirement.) Definitely worth a read.
Posted by Bradley Joondeph at 9:01 AM