Two of the amicus briefs filed yesterday in support of the United States in Virginia v. Sebelius--this one filed by Professor Kevin Walsh, and this one filed by the Professors of Federal Jurisdiction--are devoted exclusively to whether the Commonwealth has standing to challenge the individual mandate. Both conclude that it does not. Walsh argues (principally) that the federal courts lack statutory subject matter jurisdiction, an argument he makes at greater length in this article (forthcoming in the Stanford Law Review). The fed jur professors argue that, wholly apart from the statutory question, Virginia lacks constitutional standing under Article III.
We have discussed this point many times on this blog, going all the way back to Judge Hudson's initial ruling in August. But this is the first time that the arguments have received a full airing in papers filed with the courts. And I think they show why Virginia has a real problem--why this controversy, properly understood, is non-justiciable. At bottom, a state lacks any cognizable interest in whether a federal law regulating the conduct of private citizens exceeds Congress's enumerated powers (absent some other direct impact on the state itself). Virginia's Health Care Freedom Act simply does nothing to alter this basic fact. A contrary rule would effectively permit states, by passing similar nullification laws, to challenge in federal court any federal law with which they disagree.
Now one might wonder, if these standing arguments are so compelling, why hasn't DOJ emphasized them more in its filings? There is a rather simple explanation, I think. Even if Virginia (and the states in the Florida litigation) lack standing to challenge the minimum essential coverage provision, there are plenty of private individuals (such as those in the Liberty University case already before the Fourth Circuit, or the private plaintiffs in Florida v. HHS) who do have standing. Indeed, the DOJ, after contesting it in early stages of the litigation, has largely conceded the point. So DOJ will have to defend the constitutionality of ACA 1501(b) regardless, and who has standing only affects who will be the party against whom DOJ is making the argument. Given this inevitability, it makes little sense for DOJ to spend much of its scarce briefing space on whether Virginia has standing.
The ultimate significance of this issue to the fate of the ACA is rather small. In the end, there seem to be plenty of plaintiffs with standing to challenge the constitutionality of the minimum coverage provision in the existing cases. But in my view, the Commonwealth of Virginia is not one of them. Thus, its charismatic attorney general should not be the one who takes this matter to the Supreme Court.