The Ghost that Slayed the Mandate

Stanford Law Review, Vol. 64, 2012

28 Pages Posted: 26 Jan 2011 Last revised: 5 Dec 2011

See all articles by Kevin C. Walsh

Kevin C. Walsh

Columbus School of Law, The Catholic University of America

Date Written: September 2, 2011


Virginia v. Sebelius is a federal lawsuit in which Virginia seeks the invalidation of President Obama’s signature legislative initiative of healthcare reform. Virginia seeks declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia contends that the federal legislation’s individual mandate to buy health insurance is unconstitutional. Virginia’s lawsuit is one of the most closely followed and politically salient federal cases in recent times. Yet neither the federal government nor any other legal commentator has previously identified the way in which the very features of the case that contribute to its political salience also require that it be dismissed for lack of statutory subject-matter jurisdiction. The Supreme Court has placed limits on statutory subject-matter jurisdiction over declaratory judgment actions in which a state seeks a declaration that a state statute is not preempted by federal law - precisely the relief sought in Virginia v. Sebelius. These statutory limits are a sea wall; they keep out, on statutory grounds, some suits that should otherwise be kept out on Article III grounds. The statutory and constitutional limits on federal jurisdiction over suits like Virginia v. Sebelius insulate federal courts from the strong political forces surrounding lawsuits that follow from state statutes designed to create federal jurisdiction over constitutional challenges by States to federal law. This Essay identifies previously neglected jurisdictional limits, shows why they demand dismissal of Virginia v. Sebelius, and explains why it is appropriate for federal courts to be closed to suits of this type.

Keywords: Federal Jurisdiction, Federal Courts, Declaratory Judgment, Constitutional Law, Healthcare Reform, Individual Mandate

Suggested Citation

Walsh, Kevin C., The Ghost that Slayed the Mandate (September 2, 2011). Stanford Law Review, Vol. 64, 2012, Available at SSRN:

Kevin C. Walsh (Contact Author)

Columbus School of Law, The Catholic University of America ( email )

3600 John McCormack Road, NE
Washington, DC 20064
United States

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