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Monday, March 07, 2011

Prawfs challenging jurisdiction all over the place

Steve highlights the scholars' brief he filed today in Virginia v. Sebelius (which I was happy to sign on to) arguing that Virginia lacks standing to challenge PPACA's individual mandate. Also filed today was a separate amicus brief authored by Kevin Walsh (Richmond) for himself. He argues there is no statutory federal jurisdiction under § 1331 over 1) claims by a state for a declaration of the validity of its own law or 2) over claims that could not be raised in a similar enforcement action between these parties. The brief contains the arguments Kevin made in an essay (which I previously discussed), which has been accepted in Stanford Law Review.

Good stuff. Although, as one of my more-cynical senior colleagues argued, arguments like these could work at the Court of Appeals, but will not stop SCOTUS from getting to the substantive of the mandate.

Posted by Howard Wasserman on March 7, 2011 at 05:44 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Steve, I see differences, but I am not sure why they matter. Flast is a mechanism painfully obviously designed to facilitate the litigation agenda of a few interest groups. Why is giving standing to states more of a threat to Article III than Flast? (To be clear: I doubt standing in each instance.)

Posted by: Rick Garnett | Mar 8, 2011 11:41:46 PM

Rick -- I get your point, but don't you think there's a fairly significant difference between the proper scope of standing for private plaintiffs and the scope of standing for states? Whatever one thinks of Flast, it seems to me that state standing raises a very different (and more serious) threat to the case-or-controversy requirement than does _any_ non-limitless conception of individual standing...

Posted by: Steve Vladeck | Mar 8, 2011 3:05:04 PM

Howard, like you, I think we need to keep a close eye on standing, and the vital role it plays in making meaningful the case / controversy requirement. Can I count on the brief-signers to join me, when the time goes, in calling (yet again) for the overruling of Flast v. Cohen?


Posted by: Rick Garnett | Mar 8, 2011 2:14:13 PM

Howard -- As you know, I'm sympathetic to the no standing argument. Does your senior colleague really think the Court would reach the merits even in Virginia's case? To my mind, the argument we made in our brief is designed to ensure that, whatever the Court ultimately says on the individual mandate, it doesn't do it in Virginia's case, lest it make some really bad standing law going forward...

Posted by: Steve Vladeck | Mar 8, 2011 12:50:01 PM

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