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 INTRODUCTION
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 ... not within the original jurisdiction of the United States district courts." (9)
The jurisdictional issues surrounding Virginia v. Sebelius are but the most recent flashpoint of a recurrent phenomenon in American political life--the challenge of legislation in federal court almost immediately after enactment and before it has a chance to take deep root. The federal judiciary's handling of these challenges over time, in turn, has influenced the shape of jurisdictional doctrine, as succeeding generations invoke legal processes and respond to their opponents' perceived abuses of these processes. Thus, while Virginia v. Sebelius is just one case, the implications of the jurisdictional arguments at issue extend far beyond it.
The case squarely presents the question of whether federal jurisdiction can be premised on a state statute designed to obtain a federal declaratory judgment by expressing disagreement with federal law--notwithstanding the established precedents of Franchise Tax Board and Skelly Oil, and the longstanding ban on advisory opinions. To allow federal jurisdiction on this basis would cross an important line and would result in a greater intermixture of politics and law than already exists in constitutional adjudication involving divisive political issues. I argue that this line should not be crossed. But my initial contribution is to demonstrate that this line actually exists.
VIRGINIA'S PURSUIT OF HEALTH CARE FREEDOM IN FEDERAL COURT
Christmas 2010 arrived twelve days early for Virginia Attorney General Ken Cuccinelli and the top lawyers in his office. Around noon on December 13, Judge Henry Hudson of the United States District Court for the Eastern District of Virginia ruled for Virginia in its case against the mammoth health care reform legislation that President Obama had signed into law a little less than nine months earlier. Judge Hudson held that Congress exceeded the limits of its legislative powers in enacting the Patient Protection and Affordable Care Act. (10) This decision was the first to hold the Act unconstitutional.
Virginia v. Sebelius is a spare, go-it-alone affair in which Virginia is the sole plaintiff. (11) The single count in the complaint is that one statutory provision--the individual mandate, or minimum essential coverage provision--is unconstitutional. (12) Although Virginia's claim appears narrow, its object is more ambitious: to take down the entire Act. The instrument for accomplishing this objective is inseverability. This potent doctrine provides that the entire Act must fall if a part of it (like the individual mandate) is unconstitutional, and the remainder is incapable of functioning independently, or Congress would not have enacted the remainder of the Act without that unconstitutional part. (13)
Virginia's lawsuit aims to vindicate Virginia's Health Care Freedom Act, a mandate-exemption statute that provides that no individual can be required to buy health insurance. (14) Directly responding to the pending federal individual mandate, both houses of the Virginia legislature passed the Health Care Freedom Act just weeks before President Obama signed the Patient Protection and Affordable Care Act into law. (15) Answering the criticism that its enactment was just a political stunt (given that state law must give way to federal under the Supremacy Clause), Attorney General Cuccinelli stated in the press that the statute could support Virginia's standing to sue in federal court. (16) And when Virginia filed its lawsuit just minutes after the Patient Protection and Affordable Care Act became law, the complaint premised its claim on the Health Care Freedom Act.
Virginia seeks a declaratory judgment that its state law remains valid notwithstanding the individual mandate in the federal law, along with injunctive relief prohibiting enforcement of the entire Patient Protection and Affordable Care Act. (17) Although state law that conflicts with federal law is preempted, an unconstitutional federal statute cannot preempt a valid state statute. In Virginia v. Sebelius, then, Virginia contends that its state statute is valid because the conflicting federal statute is unconstitutional. (18)
Although Virginia's Health Care Freedom Act may at first have seemed to provide the Commonwealth with a quick ticket on a solo trip to invalidate the individual mandate, a closer look leads to the opposite conclusion. This analysis reveals that Virginia should be shown the exit from federal court precisely because Virginia seeks to vindicate its state statute in a declaratory judgment action. A straightforward application of established doctrine requires dismissal--not only because Virginia lacks standing (as the Fourth Circuit ultimately concluded), but also because there is no statutory subject matter jurisdiction and Virginia's lawsuit amounts to a request for a forbidden advisory opinion.
No, VIRGINIA, THERE IS NO FEDERAL JURISDICTION
The jurisdictional analysis that follows has four parts: the unavailability of parens patriae standing, the absence of statutory subject matter jurisdiction, the absence of jurisdiction under Article III, and an analysis of alternative justiciability theories.
No Parens Patriae Standing
The starting point for analysis of federal jurisdiction over Virginia's lawsuit is that Virginia must either sue on its own behalf or not at all. Massachusetts v. Mellon prevents Virginia from suing on behalf of its own citizens to enjoin the Secretary of Health and Human Services from enforcing the federal individual mandate against those citizens. (19) The Supreme Court held in Mellon that "it is no part of [the State's] duty or power to enforce [its citizens'] rights in respect of their relations with the Federal Government." (20) The Court reasoned that the citizens of a state are also citizens of the United States. To invoke "such protective measures as flow from that status," (21) individuals should look to the federal government directly rather than rely on their states as intermediaries.
Because of Massachusetts v. Mellon, Virginia...