No Standing to Challenge the Mandate
Some of the amicus briefs in the appeal of Virginia v. Sebellius to the Fourth Circuit have now been filed. (This was the first District Court opinion holding the individual mandate unconstitutional.) The most persuasive of these briefs in my book is this one arguing that the States do not have standing and that the opinion should be vacated without reaching the merits.
I’ll repeat what I’ve said here before. If this were an ordinary constitutional case, no court would be deciding the substantive questions at this point. The individual mandate does not come into effect until 2014 and that requirement has little or nothing to do with the States as States. Litigants, judges, and a lot of scholars are just blowing past procedural and jurisdictional limits that they now find inconvenient. Let’s hope the Fourth Circuit doesn’t do that.