I just finished reading the opinion in Virginia v. Sebelius, and here are some quick thoughts:
* It is a straightforward application of established Article III doctrine. Virginia is not asserting parens patriae standing, so the only question was whether the Commonwealth had a "sovereign injury." Further, Virginia did not claim injury on the basis of the individual mandate pushing more of its residents onto Medicaid, and thus costing the state more under that program. Rather, its only claim to injury was the alleged conflict between its Virginia Health Care Freedom Act and the ACA.
* Virginia's law was purely declaratory, and thus cannot be sufficient to establish the necessary injury in fact under Article III. Virginia has no authority to enforce its VHCFA against the federal government. Thus, there is no real "conflict" between federal and Virginia law that prevents Virginia from enforcing its own legal code. As a result, there is no case or controversy.
* This makes Virginia v. Sebelius a much less attractive (to use Justice O'Connor's phrasing) a vehicle for the Supreme Court to adjudicate the constitutionality of the individual mandate. First, the merits question, though pressed, will not have been passed on below. And the Court typically takes cases only when that has occurred (though this is not always the case). Second, and more important, this merely highlights the lurking standing issue that has been there all along, and which could well preclude the Court from reaching the merits. From the justices' perspective, why waste time on a case that might not be justiciable. If only to be risk averse, it is better for the Court to take a case in which standing is less controversial, such as Thomas More Law Center or Florida v. HHS.
* Some vindication for Kevin Walsh, who has been arguing from the beginning that Virginia lacked standing in this litigation.
