Legal Commentary

Steve highlights the scholars' brief he filed today in Virginia v. Sebelius (which I was happy to sign on to) arguing that Virginia lacks standing to challenge PPACA's individual mandate. Also filed today was a separate amicus brief authored by Kevin Walsh (Richmond) for himself. He argues there is no statutory federal jurisdiction under § 1331 over 1) claims by a state for a declaration of the validity of its own law or 2) over claims that could not be raised in a similar enforcement action between these parties. The brief contains the arguments Kevin made in an essay (which I previously discussed), which has been accepted in Stanford Law Review.

Good stuff. Although, as one of my more-cynical senior colleagues argued, arguments like these could work at the Court of Appeals, but will not stop SCOTUS from getting to the substantive of the mandate.