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The Ghost that Slayed the Mandate

Kevin C. Walsh

University of Richmond - School of Law

September 2, 2011

Stanford Law Review, Vol. 64, 2012

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.

Number of Pages in PDF File: 28

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

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Date posted: January 26, 2011 ; Last revised: December 5, 2011

Suggested Citation

Walsh, Kevin C., The Ghost that Slayed the Mandate (September 2, 2011). Stanford Law Review, Vol. 64, 2012. Available at SSRN: https://ssrn.com/abstract=1748550

Contact Information

Kevin C. Walsh (Contact Author)
University of Richmond - School of Law ( email )
28 Westhampton Way
Richmond, VA 23173
United States
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