Manufacturing Standing
Igor Volsky asks a good question about Monday’s ruling in Virginia v. Sebelius: Why should Virginia be allowed to manufacture standing to challenge the individual mandate?
In fact, that really is the question in this case. Unlike the other 20+ states challenging the ACA in Florida, Virginia argues that it has standing based on the federal government’s interference with Virginia’s “sovereign” lawmaking authority reserved to it by the Tenth Amendment. In other words, Virginia claims standing based on the conflict between the ACA and the state’s own Virginia Health Care Freedom Act, which outlaws an individual insurance mandate. Now, my own rule of thumb is to tune out any legal argument which relies in any way on the Tenth Amendment or employs the word ‘sovereignty’ as if it had any cognizable meaning at all. You can ponder the arguments if you wish—and in a different mood, I might—but basically what the judge said is this: Virginia has standing because its government wants it.
Here’s how I think things could shake out on appeal. The Fourth Circuit will be more discriminating than the district court, and will separate out the issues that Judge Hudson conflated in his opinion. It will find no current or imminent injury to the state’s interest. It will then rule that the Virginia law has been preempted by the ACA and, as such, cannot be the basis for standing. (Heads will spin at the thought of getting a kind of substantive ruling that undermines the basis for standing, the procedural hurdle which must be cleared in order to reach the substance in the first place. But hey—this is standing! It’s not supposed to make sense.)
The Supreme Court will then decline to take the case on cert, or summarily affirm the circuit court; we won’t see the substantive issues until 2015 when a modest taxpayer somewhere challenges them, after the penalty has been assessed.1
Why wouldn’t the Supreme Court want to rule in Virginia’s favor? Because the conservatives on the Court are generally fanatical about standing restrictions. Chief Justice Roberts in particular really doesn’t want to see a proliferation of ways for anyone or anything—including Tenther-loving red states—to manufacture standing.
- I’ll go out on a limb and predict that this modest taxpayer challenger will be a Republican, or else will suddenly have lots of Republican friends. [↩]
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