Earlier today, the Fourth Circuit dismissed Virginia's challenge to the individual mandate on standing grounds. According to the three-judge panel, the state of Virginia does not have a "sovereign interest in challenging" the individual mandate simply because it enacted a law that memorialized its disapproval of a federal law.
This is a largely uneventful opinion, authored by a Clinton appointee and joined by two Obama appointees (this same panel also dismissed a challenge to the law by Liberty University on jurisdictional grounds). Towards the end of the opinion, however, the following observation caught my eye:
Thus, if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court. . . . We cannot accept a theory of standing that so contravenes settled jurisdictional constraints.
Think for a moment about what this means. Were a state allowed to challenge a federal law simply by passing a statute in conflict with it, federal judges would have no way to become embroiled in any issue, "no matter how generalized nor quintessentially political."
That simply makes no sense.
If you don't believe me, think only about the Bush v. Gore litigation, and how long the standing question occupied the justices' time. (In case you don't remember, the answer is, not one second). Instead, justice Scalia was fond of reminding his adulating audiences that there was nothing the justices could do other than accept the case. As he recently said in an interview:
Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn't important enough?
Well, how about, nobody had standing to bring suit; or maybe this was a political question best left for the political branches; or maybe federal law placed this controversy within the explicit purview of the Congress? Would any of those work?
The point is not whether a litigant has standing, or whether a question is political or not. The only question is whether a court wishes to decide the question or whether it wishes to duck the issue. This is another way of saying, had the Fourth Circuit panel wished to decide the question, there is simply no way that standing doctrine or jurisdictional hurdles would have stood in the way.