The Ghost That Slayed the Mandate
Walsh, Kevin C., Stanford Law Review
INTRODUCTION I. VIRGINIA'S PURSUIT OF HEALTH CARE FREEDOM IN FEDERAL COURT II. NO, VIRGINIA, THERE IS NO FEDERAL JURISDICTION A. No Parens Patriae Standing B. No Statutory Subject Matter Jurisdiction C. No Article III Case of Actual Controversy D. Alternative Justiciability Theories? III. THE INSULATION ARISING OUT OF INCIDENTAL REVIEW CONCLUSION POSTSCRIPT: A REPLY TO VIRGINIA'S MANDATE-CHALLENGE TRIUMVIRATE
The situation presented by a State's suit for a declaration of the validity of state law is ... not within the original jurisdiction of the United States district courts. (1) It must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay. (2)
The leading constitutional challenges to the recent federal health care reform legislation have involved a volatile mixture of powerful political forces pressing for federal court validation. In these suits, elected state officials have aimed to obtain accelerated, abstract review of the legislation's constitutionality. Mere minutes after President Obama signed the Patient Protection and Affordable Care Act into law, Virginia filed one of the first lawsuits, Virginia ex rel. Cuccinelli v. Sebelius, challenging the constitutionality of one of the Act's key provisions. (3) The first district court decision holding this provision unconstitutional came in Virginia v. Sebelius less than nine months later. (4) In an attempt to "fast-track" the case for immediate Supreme Court review, (5) Virginia filed a petition for certiorari before judgment in the Fourth Circuit Court of Appeals. (6) The Supreme Court denied the petition, but Virginia's lawsuit remained in the lead, as the first to be argued in a court of appeals. Although it ended up being the last case decided in the first wave of mandate challenges to hit the federal appellate courts, the Fourth Circuit's ultimate holding that Virginia lacked standing brought into public view jurisdictional problems facing state challenges to the mandate, problems that had previously escaped wide notice.
Virginia's lawsuit presents on its face a prominent and critically important question of federalism: did Congress exceed the limits of its enumerated legislative powers and thereby trench on a domain reserved by the Constitution to state power? But the lawsuit also presents a previously less recognized but equally important question of separation of powers: is it within the federal judicial power to determine in this lawsuit whether Congress exceeded its legislative powers?
The core claim of this Article is that federal court adjudication of Virginia's lawsuit to enforce limits on federal legislative power exceeds the limits of federal judicial power. Due to limitations that the Supreme Court has placed on federal jurisdiction under the Declaratory Judgment Act in Franchise Tax Board v. Construction Laborers Vacation Trust (7) and Skelly Oil Co. v. Phillips Petroleum Co., (8) there is no statutory subject matter jurisdiction over Virginia's claim. In mandating dismissal of Virginia's lawsuit, these cases stop a slide into accelerated, abstract review that is inconsistent with traditional limitations on federal judicial power.
The claim that there is no statutory subject matter jurisdiction in Virginia v. Sebelius may seem incredible at first, given that Virginia's complaint seeks relief from a federal law administered by federal officials, on the ground that the federal law violates the Federal Constitution. That may be why nobody thought to address it in the district court. But the claim's soundness becomes apparent once the nature of Virginia's lawsuit is brought into proper focus: Virginia seeks a declaration that its state law is not preempted. The Supreme Court has held, however, that "[t]he situation presented by a State's suit for a declaration of the validity of state law is . …