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.

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2 Responses

  1. Bryan Gividen says:

    I am not at all well-versed in state standing doctrine, but I know that the Florida opinion featured private litigants in addition to the state. Do you think there is a stronger case for the private litigants than there is for the state? Or are you of the opinion that all litigants fail for ripeness?

  2. Howard Wasserman says:

    The amicus arguing lack of standing makes the point that private litigants are appropriate plaintiffs (at least at some point–it takes no position on current ripeness), just not the states.