Legal Commentary

In an amicus brief (that I co-authored) filed today in the Fourth Circuit in Virginia ex rel. Cuccinelli v. Sebelius, a group of pretty distinguished Federal Courts professors says "no," and rather emphatically at that.

The brief itself lays out the argument in far clearer detail, but the short version is that states can't (and shouldn't be able to) overcome the bar on parens patriae standing against the federal government merely by passing a state law that provokes a conflict with the allegedly unconstitutional federal law. Because the constitutionality of the individual mandate in no way turns on laws like the Virginia Health Care Freedom Act, Virginia is, in fact, simply suing to vindicate the rights of its citizens -- something that decades of settled precedent bars it from doing, and (as we explain) for good reason.

This doesn't mean that the various challenges to the individual mandate won't (or shouldn't) go forward; it just means that, when they do, private parties, and not states, should be the plaintiffs...