Sunday, October 2, 2011

Virginia files a petition for cert

(This post is now corrected to add the two additional questions presented I missed on p. ii.)

Virginia apparently does not want to be left out of the party. So the Commonwealth has joined the fun, filing a petition for a writ of certiorari that asks the Supreme Court to review the Fourth Circuit decision holding that Virginia lacks Article III standing to challenge the ACA's minimum essential coverage provision. (Lyle Denniston of SCOTUSblog reports on this development here.)

Virginia's petition presents six questions:
1. Whether the United States Circuit Court of Appeals for the Fourth Circuit erred when, contrary to well developed sovereign standing law in this Court and in other circuits, it became the first circuit to deny that a State of the Union has standing to defend its own code of laws.

2. Whether the Fourth Circuit erred, and opened a circuit split, when it construed the Virginia Health Care Freedom Act contrary to the construction placed upon it by the chief law officer of the Commonwealth of Virginia by holding it to be merely symbolic and therefore not a real law capable of giving rise to a sovereign injury, basing this holding in part upon a misreading of the Virginia Constitution and Acts of the Assembly.

3. Whether the Fourth Circuit erred when, contrary to definitive pronouncements of this Court and opinions of other circuits, it read the political question doctrine prong of Massachusetts v. Mellon as having continued vitality so as to prevent a State from challenging an enactment of the United States on enumerated powers grounds.

4. Whether the power claimed by Congress in the Patient Protection and Affordable Care Act (PPACA) to mandate that a citizen purchase a good or service from another citizen is unconstitutional because the claimed power exceeds the outer limits of the Commerce Clause even as executed by the Necessary and Proper Clause. 
5. Whether the PPACA mandate and penalty can be sustained as an exercise of the taxing ower.   
6. Whether the PPACA mandate and penalty are severable from all of the remaining provisions of the enactment.  
It is unclear whether questions one, two, or three are certworthy, standing alone (no pun intended). Questions four, five, and six are already presented in the other cases. There would be no point for the Court to hold this petition, and then--if the justice ultimately declare the mandate unconstitutional--grant, vacate, and remand this case the Fourth Circuit, as that court has already held that Virginia lacks standing. So it seems that the Court either needs to either (a) grant and hear the justiciability questions, or (b) simply deny the petition outright.

You can access Virginia's petition here.