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.