As evidence, Motz cited not only the wording of the law itself but also the timing of the lawsuit — noting Cuccinelli’s filing on the day Obama signed the law.
Motz also quoted statements about the state law’s purpose made by McDonnell and Lt. Gov. Bill Bolling (R), concluding that if the court allowed Virginia to sue, “a state could acquire standing to challenge any federal law merely by enacting a statute — even an utterly unenforceable one — purporting to prohibit the application of the federal law.”
Legal analysts said the opinion underscored the risk Cuccinelli took by going it alone instead of joining the multi-state suit. That case was joined by several individuals, and judges have repeatedly found that because the insurance mandate would unquestionably apply to them, all plaintiffs in the case have “piggyback” standing.
“Virginia’s sovereign interest here was weak,” Cornell law professor Michael C. Dorf said. “It’s not clear to me why they didn’t at least enlist individual plaintiffs.”
From a legal, if not a political, standpoint, the panel’s majority opinion in the case brought by Liberty University was an even greater win for the Obama administration.
While the individual plaintiffs in that case dispute the insurance mandate, the university is challenging a related requirement that large employers offer their workers adequate health insurance or pay a penalty.
The two judges in the majority ruled that in both instances the penalty amounted to a tax. And since, under most circumstances, taxes cannot be contested in federal court in advance, none of the parties have standing to sue.
In his concurring opinion, Judge James A. Wynn Jr. went further, writing that even if the plaintiffs had not been precluded from challenging a tax, the fact that the mandate counts as one means it is constitutional.
This finding could resurrect the federal government’s oft-repeated but hitherto unsuccessful argument that Congress has the authority to impose the insurance mandate through its taxing powers. Until now, even judges siding with the government have rejected that logic, noting that the law’s drafters refused to call the penalty a tax. Instead, decisions upholding the law have been based in Congress’s right to regulate commerce.
Judge Andre M. Davis raised that objection in his dissent. But he wrote that although he thinks the plaintiffs do have the right to challenge the law, it represents a proper exercise of Congress’s commerce authority and should be upheld.
Still, Dorf said the panel’s decisions were of limited use to the administration because neither addresses the merits of the constitutional challenge head-on.
“Opponents of the law will probably benefit from the fact that they lost on standing grounds,” he said. “Otherwise, the court might have been inclined to side with the administration on the merits and that would have been a much bigger victory.”
In June, a divided panel of the Court of Appeals for the 6th Circuit in Cincinnati, ruling in a similar case, also sided with the government. And so far only one appeals panel has invalidated the insurance mandate — a split panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta, ruling in the multi-state suit.
A fifth suit is scheduled for a hearing before the U.S. Court of Appeals for the District of Columbia Circuit this month.
The timeline still sets up a likely ruling in the spring, sometime before the Supreme Court’s term ends June 30.