Flagship “ObamaCare” Suit Founders in the Fourth Circuit

Per the ridiculously well-regarded Judge Diane Motz (pdf). Remember, this reverses a previously favorable decision by Judge Sutton Hudson [Thanks Rachel! -ed.]. So wipe one hash mark off the tea party “win” column, and replace it on our side:

To permit a state to litigate whenever it enacts a statute declaring its opposition to federal law, as Virginia has in the VHCFA, would convert the federal judiciary into a “forum” for the vindication of a state’s “generalized grievances about the conduct of government.” Flast v. Cohen, 392 U.S. 88, 106 (1968). Under Virginia’s standing theory, a state could acquire standing to challenge any federal law merely by enacting a statute — even an utterly unenforceable one — purporting to prohibit the application of the federal law. For example, Virginia could enact a statute declaring that “no Virginia resident shall be required to pay Social Security taxes” and proceed to file a lawsuit challenging the Social Security Act.  Or Virginia could enact a statute codifying its constitutional objection to the CIA’s financial reporting practices and proceed to litigate the sort of “generalized grievance[]” about federal administration that the Supreme Court has long held to be “committed to the . . . political process.” United States v. Richardson, 418 U.S. 166, 179-80 (1974) (internal quotation omitted).

Thus, if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court. See, e.g., id.; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974). We cannot accept a theory of standing that so contravenes settled jurisdictional constraints.

And so Kenneth Cuccinelli’s dalliance into constitutional adventurism ends with a stellar rebuke of tea party-influenced nullification theories. Congratulations, Virginia taxpayers! It takes a big man to gamble his state’s money and his political career on a legal theory rejected before the Civil War; but it takes a very special electorate to let him.


  1. Maybe it’s just me but these types of posts always feel a bit like posting the score of the latest Yankees / Red Sox game.

  2. Yes, but in this case, the entire GOP thinks the Red Sox are winning.

  3. Most of us aren’t actually keeping score. Maybe you can provide? Simple math. How many court rulings and which side scored on each?

  4. I think it’s 3-1 with this. (Distilling from this more complicated list.)

    Sixth Circuit (and lower court): upheld
    Fourth Circuit (and lower court): upheld
    Eleventh Circuit (and lower court): struck
    D. D.C. (unappealed): upheld

    1. So your team is winning? Yay!

      That means you all have lots of fans, right?

    2. Do victories on standing and other non-merits grounds count? Seems like your analysis of Hein is pertinent.

      At this point, how much do lower courts matter anyway? The 11th already created a circuit split, so cert (and I’m guessing a bunch of consolidation) is pretty much guaranteed, right?

  5. We have some. But I would rather be legally right than liked for it. Facts (and the law) are “deaf to the clamor of the populace.”

    1. I’m talking more about the legions of people signing up for the insurance pools and whatnot.

  6. A rejection of the attacks made on Obamacare should probably get a better defense lawyer.

    1. That would be hard to do. I’m really quite good.

      1. But are you admitted to the 4th Circuit bar?

      2. Not YET. Only the Seventh. Sigh.

        1. Look on the bright side. In the 7 you get to sway opinions by Posner and Easterbrook. In the 4 your rulings would be unpublished pretty much always, right?

        2. I rather like Motz! And their Al-Marri opinion was baller.

          Also, I have personally been rebuked by Judge Easterbrook. It was terrifying.

          1. Ooh! Story! Story! Or transcript/video if you’ve got it! I don’t know what he looks like, so I’m picturing a stern old badass, like Admiral Adama in the trial at the end of Season Three, right before the writers pulled Sheer Stupidity out of their asses and guaranteed I won’t watch Season Four ever. I mean, those are the Final Five? And resurrecting the dead? What the bloody fucking hell!

  7. Oh it is best told in person :). I’ll save it for Atlanta some day?

    AND I KNOW on Battlestar!!!!!! But some parts of Season 4 are worthwhile. Skip everything but the Mutiny Cycle (begins @ “Blood on the Scales”).

%d bloggers like this: