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Saturday, January 29, 2011

Jurisdictional defect in the PPACA litigation?

Yes, according to Kevin Walsh (Richmond), whose new essay argues that there is no statutory subject matter jurisdiction over the two state-initiated actions challenging the individual mandate--one brought by Virginia in the Eastern District of Virginia, the other by about twenty states (led by Florida) in the Northern District of Florida. Walsh makes three basic arguments: 1) Under Franchise Tax Board and Skelly Oil, there is no jurisdiction over a claim by a state for a declaration of the validity of its own laws as against possible preemption; 2) Under Skelly Oil, there could be no jurisdiction over a claim by a state (or any other party) for equitable relief against a provision of federal law that does not regulate its conduct, because the state never could have brought a coercive action; and 3) Parties cannot use the inseverability doctrine to invalidiate an entire statute unless they first show the unconstitutionality of a provision that applies to them. He then goes on to explain why the unavailability of federal judicial review here is a good thing--it keeps the federal courts out of a political mess between the federal government and the states, particularly where the state officials bringing the actions are, wholly or partially, politically motivated.

This is a great, quick-hitter, get-in-get-out paper. And I think his reading of the relevant cases is correct--and so (presumably perhaps, although you never know for sure) do a bunch of top-notch fed courts people listed in the author's footnote, including Jim Pfander, Richard Fallon, Jack Preis, Caleb Nelson, Joseph Blocher, and Abbe Gluck.

So the question is why no one--particularly not the U.S.--has raised this issue before. My guess is the explanation is political. The Administration does not want to win on jurisdictional grounds (and thus does not want to argue jurisdictional grounds) because that would be seen publicly and politically as a defeat. It needs to win on the merits--and it needs to win on the merits overwhelmingly. Walsh discusses the media coverage of the Virginia district court decision striking down the mandate as calling that one case a defeat for the President, even though two other district courts upheld it (including in the one case that, under Walsh's argument, actually belongs in federal court). The impact of the "defeat" overwhelmed the numerically greater "victories." A jurisdictional win would play (at least outside of the fed-courts-prof community, important as we are) as winning on a "technicality"--and thus really losing by being unwilling or unable to take on and defeat the arguments of Virginia AG Ken Cuccinelli.

There also is an interesting interplay at work among several constitutional and jurisdictional issues. First, Virginia lacks standing (as a jurisdictional or prudential matter, is not clear) to bring a parens patriae action asserting the rights of its citizens. Thus, the state had to create standing by enacting a piece of legislation declaring that citizens of Virginia are not required to purchase health insurance, then seeking a declaration that the state law is not preempted by PPACA because PPACA (or at least the individual mandate) is unconstitutional--this is what Walsh says is not subject to district court jurisdiction. And the third issue is the power of a state to enact purely declaratory, non-obligating legislation. As Walsh notes, all Franchise Tax Board really does is delay resolution of the preemption question--rather than seeking a declaratory judgment that state law is not preempted, the state must bring an enforcement action and deal with the preemption defense in that action. But that option is unavailable to Virginia here, because the law it enacted is not enforceable against anyone, since it imposes no obligations on anyone. But this suggests, perhaps, that state nullification, if it is to occur, must be done through more than symbolic declarations that federal law does not apply in its geographic borders.

To borrow a phrase, Download it while it's hot!

Posted by Howard Wasserman on January 29, 2011 at 04:04 PM in Civil Procedure, Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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Kevin, Do you or anyone else plan to raise the issue in an amicus brief? It is harder for a court to ignore a jurisdictional defect if an amicus raises it than if a good law review article does....

Posted by: I. Glenn Cohen | Jan 31, 2011 3:26:21 PM

Interesting. My research focuses on the distinctions between federal and (various) state jurisdictional/justiceability standards, and the empirical effects of those differences, so it's always nice to hear about jurisdictions that have really odd quirks that I can test to see if they have an impact on case outcomes. (About three projects down the line I'm going to look to see if the scope of state law standing requirements affects the success rate of taxpayer/citizen constitutional challenges, which is why your footnote attracted my attention. Aside, again, from the quality of the piece.)

But in any event, thanks for the really great article. The only problem is that I've now spent three days trying to reconstruct whether we covered FTB in Civ Pro II or Fed Jur.

(P.S. If you still talk to your predecessor in Scalia's chambers who is now a bigwig in Austin, tell him to drop me a line. [email protected]. I've got favors to ask.)

Posted by: Joe | Jan 30, 2011 10:49:38 PM

Hi Joe -- Thanks for the careful reading and helpful feedback. I can't recall for sure, but I think I picked that 1898 case precisely because some of the more recent cases relied on it (though you're right that there's no indication of that in the footnote itself). I take your point about lots of states expanding various aspects of justiciability, though Virginia likes to move . . . deliberately. For example, when I took the Virginia bar in 2005, common law and equity pleading were still distinct. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=946423.

Posted by: Kevin C. Walsh | Jan 30, 2011 3:59:12 PM


If you're still checking this, I had one minor quibble when I read your (excellent, but like you need me to tell you that) paper a few days ago. In your footnote about Virginia having Article III-like standing (FN34, if memory serves), you cite only a 1898 case. Lots and lots of states expanded citizen and taxpayer standing principles during the new judicial federalism expansion. It might be a good idea to add in a later case. (I was curious so I checked myself, and the proposition appears to still hold.)

Posted by: Joe | Jan 30, 2011 10:20:53 AM

Good point, Vladimir. So maybe this also tells us something about political influences on the courts--they are similarly reluctant to decide cases on "technicalities" or to be perceived as "ducking" hard questions, especially by raising the technical issues sua sponte. We might even call it a power grab--the courts want to be the institution that has the last word. And they do not want to have wait to do it.

Posted by: Howard Wasserman | Jan 30, 2011 7:06:58 AM

Howard, even if the United States hasn't raised the Skelly Oil problem, since subject matter jurisdiction is at issue, the district court would have to consider it sua sponte. No?

Posted by: Vladimir | Jan 29, 2011 11:26:17 PM

Andy -- Good points. The strength of the appropriate inference probably varies from piece to piece, and the wording of the footnote as well. I thanked various individuals for "valuable feedback and helpful comments on earlier versions of the piece." All of those words were important, and I did not mean to claim any sort of imprimatur. As would any author, I tried to make changes responsive to various comments and criticisms, though I doubt the posted version is fully responsive to all of those. I left out the disclaimer one sometimes sees about all remaining errors being my responsibility, as I think that generally implicit. At the same time, given that this is a focused doctrinal piece, it is a fair inference that I would not have posted it to SSRN if I was aware at the time of devastating objections to the core of the analysis. I'm guessing that Howard was referring to an inference of that sort. Any errors on this point, of course, are mine!

Posted by: Kevin C. Walsh | Jan 29, 2011 5:08:44 PM

" I think his reading of the relevant cases is correct--and so (presumably) do a bunch of top-notch fed courts people listed in the author's footnote"

Is it fair to infer that the persons listed in an author's footnote agree with his thesis? I always thought that was a dangerous inference, especially given that author's footnotes frequently include scholars with diametrically opposed views. It seems more appropriate to infer that the article has benefited from the insights of the listed persons, or, in some cases, that the author is simply name-dropping.

I should point out that I am speaking of author's footnotes generally. I have not read Walsh's piece and I know so little about fed courts and fed courts hotshots that it'd be difficult for me to determine whether Walsh's arguments are correct or to determine who might agree with them. But the part of the post regarding the inferences about the author's footnote drew my attention.

Posted by: andy | Jan 29, 2011 4:38:28 PM

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