PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 11-1057


COMMONWEALTH OF VIRGINIA ex rel. KENNETH T. CUCCINELLI, II, in
his official capacity as Attorney General of Virginia,

               Plaintiff - Appellee,

          v.

KATHLEEN SEBELIUS, Secretary of the Department of Health and
Human Services, in her official capacity,

               Defendant – Appellant.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

AMERICA'S HEALTH INSURANCE PLANS; CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA,

               Amici Curiae,

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; THE ARC OF THE
UNITED STATES; BREAST CANCER ACTION; FAMILIES USA; FRIENDS OF
CANCER RESEARCH; MARCH OF DIMES FOUNDATION; MENTAL HEALTH
AMERICA; NATIONAL BREAST CANCER COALITION; NATIONAL ORGANIZATION
FOR RARE DISORDERS; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES;
NATIONAL SENIOR CITIZENS LAW CENTER; NATIONAL WOMEN'S HEALTH
NETWORK; THE OVARIAN CANCER NATIONAL ALLIANCE; AMERICAN NURSES
ASSOCIATION; AMERICAN ACADEMY OF PEDIATRICS, INCORPORATED;
AMERICAN MEDICAL STUDENT ASSOCIATION; CENTER FOR AMERICAN
PROGRESS, d/b/a Doctors for America; NATIONAL HISPANIC MEDICAL
ASSOCIATION; NATIONAL PHYSICIANS ALLIANCE; CONSTITUTIONAL LAW
PROFESSORS; YOUNG INVINCIBLES; KEVIN C. WALSH; AMERICAN CANCER
SOCIETY; AMERICAN CANCER SOCIETY CANCER ACTION NETWORK; AMERICAN
DIABETES ASSOCIATION; AMERICAN HEART ASSOCIATION; DR. DAVID
CUTLER, Deputy, Otto Eckstein Professor of Applied Economics,
Harvard University; DR. HENRY AARON, Senior Fellow, Economic
Studies, Bruce and Virginia MacLaury Chair, The Brookings
Institution;   DR.   GEORGE  AKERLOF,   Koshland   Professor  of
Economics, University of California−Berkeley; DR. STUART ALTMAN,
Sol C. Chaikin Professor of National Health Policy, Brandeis
University; DR. KENNETH ARROW, Joan Kenney Professor of
Economics   and  Professor    of   Operations    Research,  Stanford
University; DR. SUSAN ATHEY, Professor of Economics, Harvard
University; DR. LINDA J. BLUMBERG, Senior Fellow, Urban
Institute, Health Policy Center; DR. LEONARD E. BURMAN, Daniel
Patrick Moynihan Professor of Public Affairs, The Maxwell
School, Syracuse University; DR. AMITABH CHANDRA, Professor of
Public Policy, Kennedy School of Government, Harvard University;
DR. MICHAEL CHERNEW, Professor, Department of Health Care
Policy, Harvard Medical School; DR. PHILIP COOK, Dr. Philip
Cook, ITT/Sanford Professor of Public Policy, Professor of
Economics, Duke University; DR. MICHAEL T. FRENCH, Professor of
Health Economics, University of Miami; DR. CLAUDIA GOLDIN, Henry
Lee Professor of Economics, Harvard University; DR. TAL GROSS,
Department of Health Policy and Management, Mailman School of
Public   Health,  Columbia    University;    DR.   JONATHAN  GRUBER,
Professor of Economics, MIT; DR. JACK HADLEY, Associate Dean for
Finance and Planning, Professor and Senior Health Services
Researcher, College of Health and Human Services, George Mason
University; DR. VIVIAN HO, Baker Institute Chair in Health
Economics and Professor of Economics, Rice University; DR. JOHN
F. HOLAHAN, Ph. D., Director, Health Policy Research Center, The
Urban Institute; DR. JILL HORWITZ, Professor of Law and −        Co
Director of the Program in Law & Economics, University of
Michigan School of Law; DR. LAWRENCE KATZ, Elisabeth Allen
Professor of Economics, Harvard University; DR. GENEVIEVE
KENNEY, Senior Fellow, The Urban Institute; DR. FRANK LEVY, Rose
Professor of Urban Economics, Department of Urban Studies and
Planning,   MIT;  DR.   PETER    LINDERT,   Distinguished   Research
Professor of Economics, University of California, Davis; DR.
ERIC MASKIN, Albert O. Hirschman Professor of Social Science at
the Institute for Advanced Study, Princeton University; DR. ALAN
C. MONHEIT, Professor of Health Economics, School of Public
Health, University of Medicine & Dentistry of New Jersey; DR.
MARILYN MOON, Vice President and Director Health Program,
American Institutes for Research; DR. RICHARD J. MURNANE,
Thompson Professor of Education and Society, Harvard University;
DR. JOSEPH P. NEWHOUSE, John D. MacArthur Professor of Health
Policy and Management, Harvard University; DR. LEN M. NICHOLS,
George Mason University; DR. HAROLD POLLACK, Helen Ross
Professor of Social Service Administration, University of
Chicago; DR. MATTHEW RABIN, Edward G. and Nancy S. Jordan
Professor of Economics, University of CaliforniaBerkeley; DR.
                                                     −
JAMES B. REBITZER, Professor of Economics, Management, and
Public Policy, Boston University School of Management; DR.
MICHAEL REICH, Professor of Economics, University of California

                                 2
at Berkeley; DR. THOMAS RICE, Professor, UCLA School of Public
Health; DR. MEREDITH ROSENTHAL, Department of Health Policy and
Management, Harvard School of Public Health; DR. CHRISTOPHER
RUHM, Professor of Public Policy and Economics, University of
Virginia;   DR.   JONATHAN  SKINNER,   Professor   of   Economics,
Dartmouth College, and Professor of Community and Family
Medicine, Dartmouth Medical School; DR. KATHERINE SWARTZ,
Professor, Department of Health Policy and Management, Harvard
School of Public Health; DR. KENNETH WARNER, Dean of the School
of Public Health and Avedis Donabedian Distinguished University
Professor of Public Health, University of Michigan; DR. PAUL N.
VAN DE WATER, Senior Fellow, Center on Budget and Policy
Priorities; DR. STEPHEN ZUCKERMAN, Senior Fellow, The Urban
Institute;   JANET   COOPER  ALEXANDER,   Frederick   I.   Richman
Professor of Law, Stanford Law School; ERWIN CHEMERINSKY,
Founding Dean, University of CaliforniaIrvine School of Law;
                                        −
AMANDA FROST, Professor of Law, American University Washington
College of Law; ANDY HESSICK, Associate Professor of Law,
Arizona State University Sandra Day O’Connor College of Law;
A.E. DICK HOWARD, White Burkett Miller Professor of Law and
Public Affairs, University of Virginia School of Law; JOHN
CALVIN JEFFRIES, JR., David and Mary Harrison Distinguished
Professor of Law, University of Virginia School of Law; JOHANNA
KALB, Assistant Professor, Loyola University New Orleans College
of Law; LUMEN N. MULLIGAN, Professor of Law, University of
Kansas School of Law; EDWARD A. PURCELL, JR., Joseph Solomon
Distinguished Professor of Law, New York Law School; CAPRICE L.
ROBERTS, Professor, Visiting Professor, Catholic University
Columbus School of Law; Professor of Law, University of West
Virginia School of Law; STEPHEN I. VLADECK, Professor of Law,
American University Washington College of Law; HOWARD M.
WASSERMAN, Associate Professor, FIU College of Law; AARP;
COMMONWEALTH OF MASSACHUSETTS; THE NATIONAL WOMEN'S LAW CENTER;
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN COLLEGE OF
NURSE−MIDWIVES; AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES; AMERICAN MEDICAL WOMEN'S ASSOCIATION; THE
ASIAN AMERICAN JUSTICE CENTER; ASIAN & PACIFIC ISLANDER AMERICAN
HEALTH FORUM; THE ASIAN PACIFIC AMERICAN LEGAL CENTER; THE BLACK
WOMENS HEALTH IMPERATIVE; THE COALITION OF LABOR UNION WOMEN;
CHILDBIRTH CONNECTION; THE CONNECTICUT WOMEN'S EDUCATION AND
LEGAL FUND; THE FEMINIST MAJORITY FOUNDATION; IBIS REPRODUCTIVE
HEALTH; INSTITUTE OF SCIENCE AND HUMAN VALUES; MARYLAND WOMEN'S
COALITION FOR HEALTH CARE REFORM; MENTAL HEALTH AMERICA;
NATIONAL   ASIAN   PACIFIC  AMERICAN   WOMEN'S   FORUM;   NATIONAL
ASSOCIATION OF SOCIAL WORKERS; NATIONAL COALITION FOR LGBT
HEALTH; NATIONAL COUNCIL OF JEWISH WOMEN; NATIONAL COUNCIL OF
WOMEN'S    ORGANIZATIONS;   NATIONAL    LATINA    INSTITUTE    FOR

                                3
REPRODUCTIVE HEALTH; THE NATIONAL RESEARCH CENTER FOR WOMEN &
FAMILIES; OLDER WOMEN'S LEAGUE; PHYSICIANS FOR REPRODUCTIVE
CHOICE AND HEALTH; RAISING WOMEN'S VOICES; SARGENT SHRIVER
NATIONAL CENTER ON POVERTY LAW; SOUTHWEST WOMEN'S LAW CENTER;
WIDER OPPORTUNITIES FOR WOMEN; THE WOMENS LAW CENTER OF
MARYLAND, INCORPORATED; WOMENS LAW PROJECT; VIRGINIA ORGANIZING;
AMERICAN HOSPITAL ASSOCIATION; ASSOCIATION OF AMERICAN MEDICAL
COLLEGES; CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES;
FEDERATION OF AMERICAN HOSPITALS; NATIONAL ASSOCIATION OF
CHILDREN'S HOSPITALS; NATIONAL ASSOCIATION OF PUBLIC HOSPITALS
AND   HEALTH   SYSTEMS;    CONSTITUTIONAL  ACCOUNTABILITY   CENTER;
MATTHEW H. ADLER, Leon Meltzer Professor of Law, University of
Pennsylvania Law School; REBECCA L. BROWN, Newton Professor of
Constitutional Law, University of Southern California Gould
School of Law; JESSE HERBERT CHOPER, Earl Warren Professor of
Public Law, University of California, Berkeley, School of Law;
MICHAEL C. DORF, Robert S. Stevens Professor of Law, Cornell
University Law School; DANIEL FARBER, Sho Sato Professor of Law,
University of California, Berkeley, School of Law; BARRY
FRIEDMAN, Jacob D. Fuchsberg Professor of Law, New York
University School of Law; WILLIAM P. MARSHALL, Kenan Professor
of Law, University of North Carolina School of Law; GENE NICHOL,
Professor   of   Law,   Director,   Center  on   Poverty,  Work   &
Opportunity, University of North Carolina School of Law; WILLIAM
J. NOVAK, Professor of Law, The University of Michigan Law
School;   RICHARD   H.    PILDES,   Sudler  Family   Professor   of
Constitutional Law, Co−Director, Center on Law and Security, New
York University School of Law; RICHARD A. PRIMUS, Professor of
Law, The University of Michigan Law School; JUDITH RESNIK,
Arthur Liman Professor of Law, Yale Law School; THEODORE W.
RUGAR, Professor of Law, University of Pennsylvania Law School;
ROBERT A. SCHAPIRO, Professor of Law, Emory University School of
Law; DAVID L. SHAPIRO, William Nelson Cromwell Professor,
Emeritus, Harvard Law School; SUZANNA SHERRY, Herman O.
Loewenstein Professor of Law, Vanderbilt University Law School;
NEIL S. SIEGEL, Professor of Law and Political Science, Duke
University School of Law; PETER J. SMITH, Professor of Law,
George Washington University Law School; ADAM WINKLER, Professor
of Law, UCLA School of Law; STATE OF CALIFORNIA; STATE OF
CONNECTICUT; STATE OF DELAWARE; STATE OF HAWAII; STATE OF IOWA;
STATE OF MARYLAND; STATE OF NEW YORK; STATE OF OREGON; STATE OF
VERMONT; CHRISTINE GREGOIRE, Governor of Washington; SERVICE
EMPLOYEES INTERNATIONAL UNION; CHANGE TO WIN,

               Amici Supporting Appellant,



                                4
THE AMERICAN CENTER FOR LAW AND JUSTICE; PAUL BROUN, United
States    Representative;    ROBERT    ADERHOLT,    United    States
Representative; TODD AKIN, United States Representative; MICHELE
BACHMANN, United States Representative; SPENCER BACHUS, United
States    Representative;    ROSCOE    BARTLETT,    United    States
Representative; ROB BISHOP, United States Representative; JOHN
BOEHNER, United States Representative; LARRY BUCSHON, United
States Representative; DAN BURTON, United States Representative;
FRANCISCO "QUICO" CANSECO, United States Representative; ERIC
CANTOR, United States Representative; STEVE CHABOT, United
States     Representative;    MIKE     CONAWAY,    United     States
Representative; BLAKE FARENTHOLD, United States Representative;
JOHN FLEMING, United States Representative; BILL FLORES, United
States     Representative;    RANDY     FORBES,    United     States
Representative; VIRGINIA FOXX, United States Representative;
TRENT FRANKS, United States Representative; SCOTT GARRETT,
United States Representative; LOUIE GOHMERT, United States
Representative; RALPH HALL, United States Representative; TIM
HUELSKAMP, United States Representative; BILL JOHNSON, United
States     Representative;    WALTER     JONES,    United     States
Representative; MIKE KELLY, United States Representative; STEVE
KING, United States Representative; JACK KINGSTON, United States
Representative; JOHN KLINE, United States Representative; DOUG
LAMBORN, United States Representative; JEFF LANDRY, United
States     Representative;   JAMES    LANKFORD,    United     States
Representative; ROBERT LATTA, United States Representative;
DONALD    MANZULLO,   United   States    Representative;    THADDEUS
MCCOTTER, United States Representative; CATHY MCMORRIS RODGERS,
United   States   Representative;   GARY   MILLER,   United   States
Representative; JEFF MILLER, United States Representative; RANDY
NEUGEBAUER, United States Representative; STEVE PEARCE, United
States Representative; MIKE PENCE, United States Representative;
JOE PITTS, United States Representative; MIKE POMPEO, United
States     Representative;    SCOTT     RIGELL,    United     States
Representative; PHIL ROE, United States Representative; ED
ROYCE, United States Representative; LAMAR SMITH, United States
Representative; TIM WALBERG, United States Representative; THE
CONSTITUTIONAL COMMITTEE TO CHALLENGE THE PRESIDENT & CONGRESS
ON HEALTH CARE; MATTHEW SISSEL; PACIFIC LEGAL FOUNDATION;
AMERICANS FOR FREE CHOICE IN MEDICINE; AMERICAN PHYSICIANS AND
SURGEONS, INCORPORATED; JANIS CHESTER, MD; MARK J. HAUSER, MD;
GUENTER L. SPANKNEBEL, MD; GRAHAM L. SPRUIELL, MD; WASHINGTON
LEGAL FOUNDATION; CONSTITUTIONAL LAW SCHOLARS; CATO INSTITUTE;
COMPETITIVE ENTERPRISE INSTITUTE; RANDY E. BARNETT, Professor;
JUSTICE AND FREEDOM FUND; KURT ALLEN ROHLFS; MOUNTAIN STATES
LEGAL FOUNDATION; LANDMARK LEGAL FOUNDATION; BOB MARSHALL,
Virginia Delegate; GUN OWNERS OF AMERICA, INCORPORATED; GUN

                                 5
OWNERS FOUNDATION; AMERICAN LIFE LEAGUE, INCORPORATED; INSTITUTE
ON THE CONSTITUTION; THE LINCOLN INSTITUTE FOR RESEARCH AND
EDUCATION; PUBLIC ADVOCATE OF THE UNITED STATES; CONSERVATIVE
LEGAL DEFENSE AND EDUCATION FUND; THE LIBERTY COMMITTEE;
DOWNSIZE DC FOUNDATION; DOWNSIZEDC.ORG; POLICY ANALYSIS CENTER;
FAMILY RESEARCH COUNCIL; WILLIAM BARR, Former United States
Attorney General; EDWIN MEESE, III, Former United States
Attorney General; DICK THORNBURGH, Former United States Attorney
General; CENTER FOR CONSTITUTIONAL JURISPRUDENCE; AMERICAN CIVIL
RIGHTS UNION; PHYSICIAN HOSPITALS OF AMERICA; TOUSSAINT TYSON,

               Amici Supporting Appellee.



                           No. 11-1058


COMMONWEALTH OF VIRGINIA ex rel. KENNETH T. CUCCINELLI, II, in
his official capacity as Attorney General of Virginia,

               Plaintiff − Appellant,

          v.

KATHLEEN SEBELIUS, Secretary of the Department of Health and
Human Services, in her official capacity,

               Defendant – Appellee.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

AMERICA'S HEALTH INSURANCE PLANS; CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA,

               Amici Curiae,

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; THE ARC OF THE
UNITED STATES; BREAST CANCER ACTION; FAMILIES USA; FRIENDS OF
CANCER RESEARCH; MARCH OF DIMES FOUNDATION; MENTAL HEALTH
AMERICA; NATIONAL BREAST CANCER COALITION; NATIONAL ORGANIZATION
FOR RARE DISORDERS; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES;
NATIONAL SENIOR CITIZENS LAW CENTER; NATIONAL WOMEN'S HEALTH
NETWORK; THE OVARIAN CANCER NATIONAL ALLIANCE; AMERICAN NURSES
ASSOCIATION; AMERICAN ACADEMY OF PEDIATRICS, INCORPORATED;
AMERICAN MEDICAL STUDENT ASSOCIATION; CENTER FOR AMERICAN
PROGRESS, d/b/a Doctors for America; NATIONAL HISPANIC MEDICAL

                                 6
ASSOCIATION; NATIONAL PHYSICIANS ALLIANCE; CONSTITUTIONAL LAW
PROFESSORS; YOUNG INVINCIBLES; KEVIN C. WALSH; AMERICAN CANCER
SOCIETY; AMERICAN CANCER SOCIETY CANCER ACTION NETWORK; AMERICAN
DIABETES ASSOCIATION; AMERICAN HEART ASSOCIATION; DR. DAVID
CUTLER, Deputy, Otto Eckstein Professor of Applied Economics,
Harvard University; DR. HENRY AARON, Senior Fellow, Economic
Studies, Bruce and Virginia MacLaury Chair, The Brookings
Institution;    DR.    GEORGE    AKERLOF,   Koshland     Professor   of
Economics, University of California    −Berkeley; DR. STUART ALTMAN,
Sol C. Chaikin Professor of National Health Policy, Brandeis
University; DR. KENNETH ARROW, Joan Kenney Professor of
Economics   and   Professor     of   Operations    Research,   Stanford
University; DR. SUSAN ATHEY, Professor of Economics, Harvard
University; DR. LINDA J. BLUMBERG, Senior Fellow, Urban
Institute, Health Policy Center; DR. LEONARD E. BURMAN, Daniel
Patrick Moynihan Professor of Public Affairs, The Maxwell
School, Syracuse University; DR. AMITABH CHANDRA, Professor of
Public Policy, Kennedy School of Government, Harvard University;
DR. MICHAEL CHERNEW, Professor, Department of Health Care
Policy, Harvard Medical School; DR. PHILIP COOK, Dr. Philip
Cook, ITT/Sanford Professor of Public Policy, Professor of
Economics, Duke University; DR. MICHAEL T. FRENCH, Professor of
Health Economics, University of Miami; DR. CLAUDIA GOLDIN, Henry
Lee Professor of Economics, Harvard University; DR. TAL GROSS,
Department of Health Policy and Management, Mailman School of
Public   Health,    Columbia    University;    DR.   JONATHAN   GRUBER,
Professor of Economics, MIT; DR. JACK HADLEY, Associate Dean for
Finance and Planning, Professor and Senior Health Services
Researcher, College of Health and Human Services, George Mason
University; DR. VIVIAN HO, Baker Institute Chair in Health
Economics and Professor of Economics, Rice University; DR. JOHN
F. HOLAHAN, Ph. D., Director, Health Policy Research Center, The
Urban Institute; DR. JILL HORWITZ, Professor of Law and Co      −
Director of the Program in Law & Economics, University of
Michigan School of Law; DR. LAWRENCE KATZ, Elisabeth Allen
Professor of Economics, Harvard University; DR. GENEVIEVE
KENNEY, Senior Fellow, The Urban Institute; DR. FRANK LEVY, Rose
Professor of Urban Economics, Department of Urban Studies and
Planning,   MIT;    DR.   PETER    LINDERT,   Distinguished    Research
Professor of Economics, University of California, Davis; DR.
ERIC MASKIN, Albert O. Hirschman Professor of Social Science at
the Institute for Advanced Study, Princeton University; DR. ALAN
C. MONHEIT, Professor of Health Economics, School of Public
Health, University of Medicine & Dentistry of New Jersey; DR.
MARILYN MOON, Vice President and Director Health Program,
American Institutes for Research; DR. RICHARD J. MURNANE,
Thompson Professor of Education and Society, Harvard University;

                                  7
DR. JOSEPH P. NEWHOUSE, John D. MacArthur Professor of Health
Policy and Management, Harvard University; DR. LEN M. NICHOLS,
George Mason University; DR. HAROLD POLLACK, Helen Ross
Professor of Social Service Administration, University of
Chicago; DR. MATTHEW RABIN, Edward G. and Nancy S. Jordan
Professor of Economics, University of CaliforniaBerkeley; DR.
                                                   −
JAMES B. REBITZER, Professor of Economics, Management, and
Public Policy, Boston University School of Management; DR.
MICHAEL REICH, Professor of Economics, University of California
at Berkeley; DR. THOMAS RICE, Professor, UCLA School of Public
Health; DR. MEREDITH ROSENTHAL, Department of Health Policy and
Management, Harvard School of Public Health; DR. CHRISTOPHER
RUHM, Professor of Public Policy and Economics, University of
Virginia;   DR.   JONATHAN  SKINNER,   Professor    of   Economics,
Dartmouth College, and Professor of Community and Family
Medicine, Dartmouth Medical School; DR. KATHERINE SWARTZ,
Professor, Department of Health Policy and Management, Harvard
School of Public Health; DR. KENNETH WARNER, Dean of the School
of Public Health and Avedis Donabedian Distinguished University
Professor of Public Health, University of Michigan; DR. PAUL N.
VAN DE WATER, Senior Fellow, Center on Budget and Policy
Priorities; DR. STEPHEN ZUCKERMAN, Senior Fellow, The Urban
Institute;   JANET   COOPER  ALEXANDER,    Frederick   I.   Richman
Professor of Law, Stanford Law School; ERWIN CHEMERINSKY,
Founding Dean, University of California −Irvine School of Law;
AMANDA FROST, Professor of Law, American University Washington
College of Law; ANDY HESSICK, Associate Professor of Law,
Arizona State University Sandra Day O’Connor College of Law;
A.E. DICK HOWARD, White Burkett Miller Professor of Law and
Public Affairs, University of Virginia School of Law; JOHN
CALVIN JEFFRIES, JR., David and Mary Harrison Distinguished
Professor of Law, University of Virginia School of Law; JOHANNA
KALB, Assistant Professor, Loyola University New Orleans College
of Law; LUMEN N. MULLIGAN, Professor of Law, University of
Kansas School of Law; EDWARD A. PURCELL, JR., Joseph Solomon
Distinguished Professor of Law, New York Law School; CAPRICE L.
ROBERTS, Professor, Visiting Professor, Catholic University
Columbus School of Law; Professor of Law, University of West
Virginia School of Law; STEPHEN I. VLADECK, Professor of Law,
American University Washington College of Law; HOWARD M.
WASSERMAN, Associate Professor, FIU College of Law; AARP;
COMMONWEALTH OF MASSACHUSETTS; THE NATIONAL WOMEN'S LAW CENTER;
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN COLLEGE OF
NURSE−MIDWIVES; AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES; AMERICAN MEDICAL WOMEN'S ASSOCIATION; THE
ASIAN AMERICAN JUSTICE CENTER; ASIAN & PACIFIC ISLANDER AMERICAN
HEALTH FORUM; THE ASIAN PACIFIC AMERICAN LEGAL CENTER; THE BLACK

                                8
WOMENS HEALTH IMPERATIVE; THE COALITION OF LABOR UNION WOMEN;
CHILDBIRTH CONNECTION; THE CONNECTICUT WOMEN'S EDUCATION AND
LEGAL FUND; THE FEMINIST MAJORITY FOUNDATION; IBIS REPRODUCTIVE
HEALTH; INSTITUTE OF SCIENCE AND HUMAN VALUES; MARYLAND WOMEN'S
COALITION FOR HEALTH CARE REFORM; MENTAL HEALTH AMERICA;
NATIONAL   ASIAN   PACIFIC    AMERICAN   WOMEN'S   FORUM;   NATIONAL
ASSOCIATION OF SOCIAL WORKERS; NATIONAL COALITION FOR LGBT
HEALTH; NATIONAL COUNCIL OF JEWISH WOMEN; NATIONAL COUNCIL OF
WOMEN'S    ORGANIZATIONS;     NATIONAL    LATINA    INSTITUTE     FOR
REPRODUCTIVE HEALTH; THE NATIONAL RESEARCH CENTER FOR WOMEN &
FAMILIES; OLDER WOMEN'S LEAGUE; PHYSICIANS FOR REPRODUCTIVE
CHOICE AND HEALTH; RAISING WOMEN'S VOICES; SARGENT SHRIVER
NATIONAL CENTER ON POVERTY LAW; SOUTHWEST WOMEN'S LAW CENTER;
WIDER OPPORTUNITIES FOR WOMEN; THE WOMENS LAW CENTER OF
MARYLAND, INCORPORATED; WOMENS LAW PROJECT; VIRGINIA ORGANIZING;
AMERICAN HOSPITAL ASSOCIATION; ASSOCIATION OF AMERICAN MEDICAL
COLLEGES; CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES;
FEDERATION OF AMERICAN HOSPITALS; NATIONAL ASSOCIATION OF
CHILDREN'S HOSPITALS; NATIONAL ASSOCIATION OF PUBLIC HOSPITALS
AND   HEALTH   SYSTEMS;    CONSTITUTIONAL   ACCOUNTABILITY   CENTER;
MATTHEW H. ADLER, Leon Meltzer Professor of Law, University of
Pennsylvania Law School; REBECCA L. BROWN, Newton Professor of
Constitutional Law, University of Southern California Gould
School of Law; JESSE HERBERT CHOPER, Earl Warren Professor of
Public Law, University of California, Berkeley, School of Law;
MICHAEL C. DORF, Robert S. Stevens Professor of Law, Cornell
University Law School; DANIEL FARBER, Sho Sato Professor of Law,
University of California, Berkeley, School of Law; BARRY
FRIEDMAN, Jacob D. Fuchsberg Professor of Law, New York
University School of Law; WILLIAM P. MARSHALL, Kenan Professor
of Law, University of North Carolina School of Law; GENE NICHOL,
Professor   of   Law,   Director,   Center   on   Poverty,   Work   &
Opportunity, University of North Carolina School of Law; WILLIAM
J. NOVAK, Professor of Law, The University of Michigan Law
School;   RICHARD   H.    PILDES,   Sudler   Family   Professor    of
Constitutional Law, Co−Director, Center on Law and Security, New
York University School of Law; RICHARD A. PRIMUS, Professor of
Law, The University of Michigan Law School; JUDITH RESNIK,
Arthur Liman Professor of Law, Yale Law School; THEODORE W.
RUGAR, Professor of Law, University of Pennsylvania Law School;
ROBERT A. SCHAPIRO, Professor of Law, Emory University School of
Law; DAVID L. SHAPIRO, William Nelson Cromwell Professor,
Emeritus, Harvard Law School; SUZANNA SHERRY, Herman O.
Loewenstein Professor of Law, Vanderbilt University Law School;
NEIL S. SIEGEL, Professor of Law and Political Science, Duke
University School of Law; PETER J. SMITH, Professor of Law,
George Washington University Law School; ADAM WINKLER, Professor

                                 9
of Law, UCLA School of Law; STATE OF CALIFORNIA; STATE OF
CONNECTICUT; STATE OF DELAWARE; STATE OF HAWAII; STATE OF IOWA;
STATE OF MARYLAND; STATE OF NEW YORK; STATE OF OREGON; STATE OF
VERMONT; CHRISTINE GREGOIRE, Governor of Washington; SERVICE
EMPLOYEES INTERNATIONAL UNION; CHANGE TO WIN,

               Amici Supporting Appellee,

THE AMERICAN CENTER FOR LAW AND JUSTICE; PAUL BROUN, United
States    Representative;    ROBERT    ADERHOLT,    United    States
Representative; TODD AKIN, United States Representative; MICHELE
BACHMANN, United States Representative; SPENCER BACHUS, United
States    Representative;    ROSCOE    BARTLETT,    United    States
Representative; ROB BISHOP, United States Representative; JOHN
BOEHNER, United States Representative; LARRY BUCSHON, United
States Representative; DAN BURTON, United States Representative;
FRANCISCO "QUICO" CANSECO, United States Representative; ERIC
CANTOR, United States Representative; STEVE CHABOT, United
States     Representative;    MIKE     CONAWAY,    United     States
Representative; BLAKE FARENTHOLD, United States Representative;
JOHN FLEMING, United States Representative; BILL FLORES, United
States     Representative;    RANDY     FORBES,    United     States
Representative; VIRGINIA FOXX, United States Representative;
TRENT FRANKS, United States Representative; SCOTT GARRETT,
United States Representative; LOUIE GOHMERT, United States
Representative; RALPH HALL, United States Representative; TIM
HUELSKAMP, United States Representative; BILL JOHNSON, United
States     Representative;    WALTER     JONES,    United     States
Representative; MIKE KELLY, United States Representative; STEVE
KING, United States Representative; JACK KINGSTON, United States
Representative; JOHN KLINE, United States Representative; DOUG
LAMBORN, United States Representative; JEFF LANDRY, United
States     Representative;   JAMES    LANKFORD,    United     States
Representative; ROBERT LATTA, United States Representative;
DONALD    MANZULLO,   United   States    Representative;    THADDEUS
MCCOTTER, United States Representative; CATHY MCMORRIS RODGERS,
United   States   Representative;   GARY   MILLER,   United   States
Representative; JEFF MILLER, United States Representative; RANDY
NEUGEBAUER, United States Representative; STEVE PEARCE, United
States Representative; MIKE PENCE, United States Representative;
JOE PITTS, United States Representative; MIKE POMPEO, United
States     Representative;    SCOTT     RIGELL,    United     States
Representative; PHIL ROE, United States Representative; ED
ROYCE, United States Representative; LAMAR SMITH, United States
Representative; TIM WALBERG, United States Representative; THE
CONSTITUTIONAL COMMITTEE TO CHALLENGE THE PRESIDENT & CONGRESS
ON HEALTH CARE; MATTHEW SISSEL; PACIFIC LEGAL FOUNDATION;

                                10
AMERICANS FOR FREE CHOICE IN MEDICINE; AMERICAN PHYSICIANS AND
SURGEONS, INCORPORATED; JANIS CHESTER, MD; MARK J. HAUSER, MD;
GUENTER L. SPANKNEBEL, MD; GRAHAM L. SPRUIELL, MD; WASHINGTON
LEGAL FOUNDATION; CONSTITUTIONAL LAW SCHOLARS; CATO INSTITUTE;
COMPETITIVE ENTERPRISE INSTITUTE; RANDY E. BARNETT, Professor;
JUSTICE AND FREEDOM FUND; KURT ALLEN ROHLFS; MOUNTAIN STATES
LEGAL FOUNDATION; LANDMARK LEGAL FOUNDATION; BOB MARSHALL,
Virginia Delegate; GUN OWNERS OF AMERICA, INCORPORATED; GUN
OWNERS FOUNDATION; AMERICAN LIFE LEAGUE, INCORPORATED; INSTITUTE
ON THE CONSTITUTION; THE LINCOLN INSTITUTE FOR RESEARCH AND
EDUCATION; PUBLIC ADVOCATE OF THE UNITED STATES; CONSERVATIVE
LEGAL DEFENSE AND EDUCATION FUND; THE LIBERTY COMMITTEE;
DOWNSIZE DC FOUNDATION; DOWNSIZEDC.ORG; POLICY ANALYSIS CENTER;
FAMILY RESEARCH COUNCIL; WILLIAM BARR, Former United States
Attorney General; EDWIN MEESE, III, Former United States
Attorney General; DICK THORNBURGH, Former United States Attorney
General; CENTER FOR CONSTITUTIONAL JURISPRUDENCE; AMERICAN CIVIL
RIGHTS UNION; PHYSICIAN HOSPITALS OF AMERICA; TOUSSAINT TYSON,

                Amici Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:10-cv-00188-HEH)


Argued:   May 10, 2011               Decided:   September 8, 2011


Before MOTZ, DAVIS, and WYNN, Circuit Judges.


Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Davis and Judge Wynn joined.


ARGUED: Neal Kumar Katyal, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant/Cross-Appellee.     Earle Duncan
Getchell, Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee/Cross-Appellant.      ON BRIEF:
Tony West, Assistant Attorney General, Beth S. Brinkmann, Deputy
Assistant Attorney General, Mark B. Stern, Alisa B. Klein,
Anisha S. Dasgupta, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellant/Cross-Appellee.   Kenneth T.

                                11
Cuccinelli, II, Attorney General of Virginia, Stephen R.
McCullough, Senior Appellate Counsel, Charles E. James, Jr.,
Chief Deputy Attorney General, Wesley G. Russell, Jr., Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond,   Virginia,   for   Appellee/Cross-Appellant.       Joseph
Miller, Julie Simon Miller, AMERICA’S HEALTH INSURANCE PLANS,
Washington, D.C.; Seth P. Waxman, Randolph D. Moss, Catherine M.
A. Carroll, Madhu Chugh, WILMER CUTLER PICKERING HALE AND DORR
LLP, Washington, D.C., for American’s Health Insurance Plans,
Amicus Curiae.     Robin S. Conrad, Shane B. Kawka, NATIONAL
CHAMBER LITIGATION CENTER, INC., Washington, D.C.; K. Lee
Blalack, II, Brian Boyle, Joshua Deahl, O’MELVENY & MYERS LLP,
Washington, D.C., for Chamber of Commerce of the United States
of America, Amicus Curiae.      Rochelle Bobroff, Simon Lazarus,
NATIONAL SENIOR CITIZENS LAW CENTER, Washington, D.C., for
American Association of People with Disabilities, The ARC of the
United States, Breast Cancer Action, Families USA, Friends of
Cancer Research, March of Dimes Foundation, Mental Health
America, National Breast Cancer Coalition, National Organization
for Rare Disorders, National Partnership for Women and Families,
National Senior Citizens Law Center, National Women’s Health
Network, and The Ovarian Cancer National Alliance, Amici
Supporting Appellant/Cross-Appellee.    Ian Millhiser, CENTER FOR
AMERICAN   PROGRESS,   Washington,   D.C.,   for   American   Nurses
Association, American Academy of Pediatrics, Incorporated,
American Medical Student Association, Center for American
Progress, d/b/a Doctors for America, National Hispanic Medical
Association, and National Physicians Alliance, Amici Supporting
Appellant/Cross-Appellee.      Gillian   E.   Metzger,   Trevor   W.
Morrison, New York, New York; Andrew J. Pincus, Charles A.
Rothfeld, Paul W. Hughes, Michael B. Kimberly, MAYER BROWN LLP,
Washington, D.C., for Constitutional Law Professors, Amici
Supporting Appellant/Cross-Appellee.      Brett A. Walter, BAACH
ROBINSON & LEWIS PLLC, Washington, D.C., for Young Invincibles,
Amicus Supporting Appellant/Cross-Appellee.        Kevin C. Walsh,
UNIVERSITY OF RICHMOND SCHOOL OF LAW, Richmond, Virginia, for
Kevin C. Walsh, Amicus Supporting Appellant/Cross-Appellee.
Mary P. Rouvelas, Senior Counsel, AMERICAN CANCER SOCIETY,
Washington, D.C.; John Longstreth, Molly Suda, K&L GATES LLP,
Washington, D.C., for American Cancer Society, American Cancer
Society Cancer Action Network, American Diabetes Association,
and    American      Heart    Association,      Amici     Supporting
Appellant/Cross-Appellee.    Richard L. Rosen, ARNOLD & PORTER
LLP, Washington, D.C., for Economic Scholars, Amici Supporting
Appellant/Cross-Appellee. Stephen I. Vladeck, Washington, D.C.;
F. Paul Bland, Jr., CHAVEZ & GERTLER, Washington, D.C., for
Professors    of    Federal    Jurisdiction,     Amici    Supporting

                                12
Appellant/Cross-Appellee.      Stuart R. Cohen, Stacy Canan, AARP
FOUNDATION LITIGATION; Michael Schuster, AARP, Washington, D.C.,
for AARP, Amicus Supporting Appellant/Cross-Appellee.               Martha
Coakley,    Attorney   General    of    Massachusetts,      Frederick   D.
Augenstern, Assistant Attorney General, Thomas M. O’Brien,
Assistant    Attorney   General,     Daniel   J.     Hammond,    Assistant
Attorney General, Boston, Massachusetts, for Commonwealth of
Massachusetts,     Amicus    Supporting      Appellant/Cross-Appellee.
Marcia D. Greenberger, Emily J. Martin, Judith G. Waxman, Lisa
Codispoti, NATIONAL WOMEN’S LAW CENTER; Melissa Hart, UNIVERSITY
OF COLORADO LAW SCHOOL, Boulder, Colorado, for National Women's
Law Center, American Association of University Women, American
College of Nurse-Midwives, Amerian Federation of State, County
and Municipal Employees, American Medical Women's Association,
The Asian American Justice Center, Asian & Pacific Islander
American Health Forum; The Asian Pacific American Legal Center,
Black Women's Health Imperative, The Coalition of Labor Union
Women, Childbirth Connection, The Connecticut Women’s Education
and   Legal    Fund,   The  Feminist      Majority     Foundation,    Ibis
Reproductive Health, Institute of Science and Human Values,
Maryland Women's Coalition for Health Care Reform, Mental Health
America, National Asian Pacific American Women's Forum, National
Association of Social Workers, National Coalition for LGBT
Health, National Council of Jewish Women, National Council of
Women's     Organizations,     National      Latina      Institute     for
Reproductive Health, The National Research Center for Women &
Families, Older Women's League, Physicians for Reproductive
Choice and Health, Raising Women's Voices, Sargent Shriver
National Center on Poverty Law, Southwest Women's Law Center,
Wider Opportunities for Women, The Women's Law Center of
Maryland,    Incorporated,    and     Women's    Law     Project,    Amici
Supporting Appellant/Cross-Appellee.            Thomas D. Domonoske,
Harrisonburg,     Virginia,    for     Virginia     Organizing,     Amicus
Supporting     Appellant/Cross-Appellee.          Sheree      R.   Kanner,
Catherine E. Stetson, Dominic F. Perella, Michael D. Kass, Sara
A. Kraner, HOGAN LOVELLS US LLP, Washington, D.C.; Melinda Reid
Hatton, Maureen D. Mudron, AMERICAN HOSPITAL ASSOCIATION,
Washington, D.C.; Ivy Baer, Karen Fisher, ASSOCIATION OF
AMERICAN MEDICAL COLLEGES, Washington, D.C.; Jeffrey G. Micklos,
FEDERATION OF AMERICAN HOSPITALS, Washington, D.C.; Larry S.
Gage, President, NATIONAL ASSOCIATION OF PUBLIC HOSPITALS AND
HEALTH SYSTEMS, Washington, D.C.; Lisa Gilden, Vice President,
General    Counsel/Compliance      Officer,     THE     CATHOLIC    HEALTH
ASSOCIATION OF THE UNITED STATES, Washington, D.C.; Lawrence A.
McAndrews, President and Chief Executive Officer, NATIONAL
ASSOCIATION OF CHILDREN’S HOSPITALS, Alexandria, Virginia, for
American Hospital Association, Association of American Medical

                                   13
Colleges, Catholic Health Association of the United States,
Federation of American Hospitals, National Association of
Children's   Hospitals,    and     National    Association    Of   Public
Hospitals And Health Systems, Amici Supporting Appellant/Cross-
Appellee.       Elizabeth     B.     Wydra,     Douglas    T.    Kendall,
CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for
Constitutional     Accountability       Center,     Amicus     Supporting
Appellant/Cross-Appellee.      Barry Friedman, New York, New York;
Jeffrey A. Lamken, Robert K. Kry, Martin V. Totaro, Lucas M.
Walker, Washington, D.C., for Law Professors, Amici Supporting
Appellant/Cross-Appellee. Kamala D. Harris, Attorney General of
California, Manuel M. Medeiros, State Solicitor General, Travis
LeBlanc, Special Assistant Attorney General, Daniel J. Powell,
Deputy Attorney General, San Francisco, California; Douglas F.
Gansler, Attorney General of Maryland, William F. Brockman,
Deputy Solicitor General, Joshua N. Auerbach, Assistant Attorney
General, Baltimore, Maryland; George C. Jespen, Attorney General
of Connecticut, Hartford, Connecticut; Joseph R. Biden, III,
Attorney General of Delaware, Wilmington, Delaware; David M.
Louie, Attorney General of Hawaii, Honolulu, Hawaii; Tom Miller,
Attorney   General    of    Iowa,     Des   Moines,    Iowa;    Eric   T.
Schneiderman, Attorney General of New York, New York, New York;
John R. Kroger, Attorney General of Oregon, Salem, Oregon;
William H. Sorrell, Attorney General of Vermont, Montpelier,
Vermont, for States of California, Connecticut, Delaware,
Hawaii, Iowa, Maryland, New York, Oregon, and Vermont, Amici
Supporting Appellant/Cross-Appellee.             Adam Berger, Kristin
Houser, Rebecca J. Roe, William Rutzick, SCHROETER, GOLDMARK &
BENDER, Seattle, Washington, for Christine O. Gregoire, Governor
of   Washington,    Amicus    Supporting      Appellant/Cross-Appellee.
Jonathan Weissglass, Jennifer Sung, P. Casey Pitts, ALTSHULER
BERZON LLP, San Francisco, California, for Service Employees
International Union and Change to Win; Judith A. Scott, Walter
Kamiat, Mark Schneider, Ariel Zev Weisbard, SERVICE EMPLOYEES
INTERNATIONAL    UNION,    Washington,      D.C.,    Service    Employees
International Union; Patrick J. Szymanski, CHANGE TO WIN,
Washington,   D.C.,    for    Change     to    Win,   Amici    Supporting
Appellant/Cross-Appellee.       Jay Alan Sekulow, Stuart J. Roth,
Colby M. May, AMERICAN CENTER FOR LAW & JUSTICE, Washington,
D.C.; John P. Tuskey, Laura B. Hernandez, AMERICAN CENTER FOR
LAW & JUSTICE, Virginia Beach, Virginia, for The American Center
for Law & Justice, Forty-Nine Members of the United States House
of   Representatives,    and     the    Constitutional    Committee    to
Challenge the President & Congress on Health Care, Amici
Supporting Appellee/Cross-Appellant. Robert Luther III, KNICELY
& ASSOCIATES, PC, Williamsburg, Virginia; Timothy Sandefur, Luke
Wake, PACIFIC LEGAL FOUNDATION, Sacramento, California, for

                                   14
Matthew Sissel, Pacific Legal Foundation, and Americans for Free
Choice in Medicine, Amici Supporting Appellee/Cross-Appellant.
David P. Felsher, New York, New York; Andrew L. Schlafly, Far
Hills, New Jersey, for American Physicians and Surgeons,
Incorporated, Janis Chester, M.D., Mark J. Hauser, M.D., Guenter
L. Spanknebel, M.D., and Graham L. Spruiell, M.D., Amici
Supporting Appellee/Cross-Appellant.       Ilya Somin,    GEORGE MASON
UNIVERSITY SCHOOL OF LAW, Arlington, Virginia; Daniel J. Popeo,
Cory L. Andrews, WASHINGTON LEGAL FOUNDATION, Washington, D.C.,
for Washington Legal Foundation and Constitutional Law Scholars,
Amici Supporting Appellee/Cross-Appellant. Robert A. Levy, Ilya
Shapiro, David H. Rittgers, CATO INSTITUTE, Washington, D.C.;
Patrick    M.     McSweeney,    Powhatan,    Virginia;   Hans   Bader,
COMPETITIVE ENTERPRISE INSTITUTE, Washington, D.C., for Cato
Institute, Competitive Enterprise Institute, and Randy E.
Barnett, Professor, Amici Supporting Appellee/Cross-Appellant.
Deborah J. Dewart, Swansboro, North Carolina, for Justice and
Freedom Fund, Amicus Supporting Appellee/Cross-Appellant.         Kurt
Rohlfs, CHERNOFF VILHAUER MCCLUNG & STENZEL, Portland, Oregon,
for   Kurt    Allen    Rohlfs,   Amicus   Supporting   Appellee/Cross-
Appellant.     Joel M. Spector, MOUNTAIN STATES LEGAL FOUNDATION,
Lakewood, Colorado, for Mountain States Legal Foundation, Amicus
Supporting Appellee/Cross-Appellant.       Mark R. Levin, Michael J.
O’Neill, Matthew C. Forys, LANDMARK LEGAL FOUNDATION, Leesburg,
Virginia; Richard P. Hutchison, LANDMARK LEGAL FOUNDATION,
Kansas City, Missouri, for Landmark Legal Foundation, Amicus
Supporting Appellee/Cross-Appellant.       William J. Olson, Herbert
W. Titus, John S. Miles, Jeremiah L. Morgan, WILLIAM J. OLSON,
PC, Vienna, Virginia, for Bob Marshall, Virginia Delegate, Gun
Owners of America, Incorporated, Gun Owners Foundation, American
Life League, Incorporated, Institute on the Constitution, The
Lincoln Institute for Research and Education, Public Advocate of
the United States, Conservative Legal Defense and Education
Fund,    The     Liberty    Committee,    Downsize    DC   Foundation,
Downsizedc.org, and Policy Analysis Center, Amici Supporting
Appellee/Cross-Appellant. Kenneth A. Klukowski, FAMILY RESEARCH
COUNCIL, Washington, D.C., for Family Research Council, Amicus
Supporting Appellee/Cross-Appellant.          Michael A. Carvin, C.
Kevin Marshall, JONES DAY, Washington, D.C., for Former United
States Attorneys General William Barr, Edwin Meese, III, and
Dick   Thornburgh,     Amici   Supporting    Appellee/Cross-Appellant.
John C. Eastman, Anthony T. Caso, Karen J. Lugo, CHAPMAN
UNIVERSITY SCHOOL OF LAW, Orange, California, for Center for
Constitutional Jurisprudence, Amicus Supporting Appellee/Cross-
Appellant.     Peter Ferrara, AMERICAN CIVIL RIGHTS UNION, Easton,
Pennsylvania, for American Civil Rights Union, Amicus Supporting
Appellee/Cross-Appellant.      Scott C. Oostdyk, Robert L. Hodges,

                                 15
H. Carter Redd, Lisa M. Sharp, Matthew D. Fender, MCGUIREWOODS
LLP, Richmond, Virginia, for Physician Hospitals of America,
Amicus Supporting Appellee/Cross-Appellant. Toussaint Tyson,
Gainesville,   Florida,  Amicus    Supporting  Appellee/Cross-
Appellant.




                              16
DIANA GRIBBON MOTZ, Circuit Judge:

      The    Commonwealth       of    Virginia        (“Virginia”)        brings     this

action      against     Kathleen        Sebelius,         the    Secretary      of    the

Department     of     Health    and     Human       Services     (“the    Secretary”).

Virginia challenges one provision of the Patient Protection and

Affordable      Care     Act     as     an        unconstitutional       exercise     of

congressional       power.       Virginia          maintains     that    the   conflict

between     this    provision     and    a    newly-enacted        Virginia     statute

provides it with standing to pursue this action.                         After finding

that this asserted conflict did give Virginia standing to sue,

the      district      court     declared           the     challenged         provision

unconstitutional.         For the reasons that follow, we hold that

Virginia, the sole plaintiff here, lacks standing to bring this

action.      Accordingly, we vacate the judgment of the district

court and remand with instructions to dismiss the case for lack

of subject-matter jurisdiction.



                                             I.

      In March 2010 Congress enacted the Patient Protection and

Affordable Care Act (“the Affordable Care Act” or “the Act”),

which seeks to institute comprehensive changes in the health

insurance industry.           Pub. L. No. 111-148.              The provision of the

Act   challenged       here    requires,      with     limited     exceptions,       that

individual     taxpayers       who    fail    to     “maintain”     adequate       health

                                             17
insurance coverage pay a “penalty.”                         26 U.S.C. § 5000A(a)-(b).

We     describe    the    Affordable           Care    Act     and   this       “individual

mandate” provision in Liberty Univ. v. Geithner, -- F.3d -- (4th

Cir. 2011).       We need not repeat that discussion here.                           Like the

plaintiffs in Liberty, Virginia contends that Congress lacked

constitutional authority to enact the individual mandate.

       This case, however, differs from Liberty and every one of

the many other cases challenging the Act in a critical respect:

the sole provision challenged here -- the individual mandate –-

imposes     no    obligations         on       the     sole     plaintiff,           Virginia.

Notwithstanding         this     fact,     Virginia          maintains        that    it   has

standing to bring this action because the individual mandate

allegedly      conflicts       with   a    newly-enacted          state       statute,     the

Virginia Health Care Freedom Act (VHCFA).

       Virginia filed this action on March 23, 2010, the same day

that the President signed the Affordable Care Act into law.                                The

Governor of Virginia did not sign the VHFCA into law until the

next    day.      The    VHCFA    declares,          with    exceptions       not     relevant

here, that “[n]o resident of this Commonwealth . . . shall be

required to obtain or maintain a policy of individual insurance

coverage.”        Va.    Code    Ann.      §   38.2-3430.1:1.            It    contains     no

enforcement mechanism.

       Because the individual mandate applies only to individual

persons, not states, the Secretary moved to dismiss the suit for

                                               18
lack of subject-matter jurisdiction.               The Secretary contended

that Virginia had not and could not allege any cognizable injury

and so was without standing to bring this action.                       Virginia

insisted that it acquired standing from the asserted “collision”

between its new statute, the VHCFA, and the individual mandate.

Although the district court recognized that the VHCFA was only

“declaratory     [in]   nature,”    it    held   that    the   VHCFA    provided

Virginia    standing.     The   court     then   declared      the   individual

mandate unconstitutional, awarding summary judgment to Virginia.

      The   Secretary    appeals,    maintaining        that   Virginia    lacks

standing to challenge the individual mandate and that, in any

event, the mandate withstands constitutional attack.                   We review

de novo the district court’s ruling as to standing.                  See Benham

v.   City   of   Charlotte,   

,    134    (4th   Cir.    2011).

Because we hold that Virginia lacks standing, 1 we cannot reach

the question of whether the Constitution authorizes Congress to

enact the individual mandate.            See Steel Co. v. Citizens for a

Better Env’t, 

, 101-02 (1998).

      1
       In Liberty, we held that the Anti-Injunction Act (AIA)
barred two taxpayers from bringing a pre-enforcement action
challenging the individual mandate.   -- F.3d at ___.   Virginia
may well be exempt from the AIA bar.      See South Carolina v.
Regan, 

, 378 (1984). We do not reach this question,
however, because we must dismiss this case for lack of standing.
See Sinochem Intern. Co. v. Malaysia Intern. Shipping Corp., 

, 431 (2007) (noting that “a federal court has leeway to
choose among threshold” jurisdictional grounds for dismissing a
case (internal quotation omitted)).


                                     19
                                        II.

      Article III of the Constitution confers on federal courts

the   power    to    resolve   only     “cases”   and    “controversies.”         A

federal court may not pronounce on “questions of law arising

outside” of such “cases and controversies.”                 Arizona Christian

Sch. Tuition Org. v. Winn, 563 U.S. --- (2011) (slip op. at 5).

To do so “would be inimical to the Constitution’s democratic

character”     and    would    weaken    “the   public’s    confidence      in   an

unelected but restrained Federal Judiciary.”               

   doctrine       prevents       federal    courts     from

transgressing this constitutional limit.                See Lujan v. Defenders

of Wildlife, 

, 560 (1992).                  Thus, to ensure that

there exists the requisite “case” or “controversy,” a plaintiff

must satisfy the three requirements that combine to form the

“irreducible constitutional minimum of standing.”                 

      Specifically, a plaintiff must demonstrate that:                      (1) it

has “suffered an injury in fact”; (2) there exists a “causal

connection between the injury and the conduct complained of”;

and (3) a favorable judicial ruling will “likely” redress that

injury.     

omitted).               The burden rests

with the party invoking federal jurisdiction, here Virginia, to

“establish[] these elements.”             

       Only if Virginia

meets the burden of establishing standing does the Constitution



                                         20
permit a federal court to address the merits of the arguments

presented.     See 

.

     Standing here turns on whether Virginia has suffered the

necessary     “injury       in    fact.”         To    satisfy       that     requirement,

Virginia must demonstrate that the individual mandate in the

Affordable     Care         Act     “inva[des]”          its       “legally        protected

interest,”      in      a        manner     that       is      both     “concrete          and

particularized” and “actual or imminent.”                           

(internal quotations omitted).

     We note at the outset that the individual mandate imposes

none of the obligations on Virginia that, in other cases, have

provided a state standing to challenge a federal statute.                             Thus,

the individual mandate does not directly burden Virginia, cf.

Bowen v. Public Agencies, 

, 50 n.17 (1986), does not

commandeer    Virginia’s          enforcement         officials,      cf.    New    York    v.

United   States,      

   (1992),         and    does     not    threaten

Virginia’s sovereign territory, cf. Massachusetts v. EPA, 

, 519 (2007).              Virginia makes no claim to standing on

these bases.

     What     Virginia       maintains       is       that     it     has    standing      to

challenge the individual mandate solely because of the asserted

conflict between that federal statute and the VHCFA.                                A state

possesses an interest in its “exercise of sovereign power over

individuals     and     entities      within       the      relevant        jurisdiction,”

                                            21
which “involves the power to create and enforce a legal code.”

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 

, 601

(1982)).   A federal statute that hinders a state’s exercise of

this sovereign power to “create and enforce a legal code” at

least arguably inflicts an injury sufficient to provide a state

standing   to   challenge    the    federal     statute.    See   Wyoming    v.

United States, 

, 1242 (10th Cir. 2008); see also

Diamond v. Charles, 

, 62 (1986) (noting in dicta that

“a State has standing to defend the constitutionality of its

statute” (emphasis added)).             Virginia argues that the individual

mandate, in assertedly conflicting with the VHCFA, has caused

Virginia this sort of sovereign injury.

     The Secretary contends that Virginia’s claim is not of the

sort recognized in Wyoming.             Rather, according to the Secretary,

Virginia   actually   seeks        to    litigate   as   parens   patriae    by

asserting the rights of its citizens.               As the Secretary points

out, such a claim would run afoul of the prohibition against

states suing the United States on behalf of their citizens.                 See

n.16; Massachusetts v. Mellon, 

, 485-86 (1923).     This prohibition rests on the recognition

that a state possesses no legitimate interest in protecting its

citizens from the government of the United States.                See 

.         With respect to the federal government’s

relationship to individual citizens, “it is the United States,

                                         22
and    not    the    state,      which        represents      [citizens]      as     parens

patriae.”        

          When a state brings a suit seeking to

protect      individuals        from    a    federal    statute,       it   usurps      this

sovereign prerogative of the federal government and threatens

the “general supremacy of federal law.”                      Pennsylvania v. Kleppe,

, 677 (D.C. Cir. 1976).                    A state has no interest in

the rights of its individual citizens sufficient to justify such

an invasion of federal sovereignty.                    See 

(noting

that the “federalism interest” in “avoidance of state inference

with the exercise of federal powers” will “predominate and bar”

any parens patriae lawsuit against the United States).

       Accordingly,       the    question       presented      here    is    whether     the

purported conflict between the individual mandate and the VHCFA

actually inflicts a sovereign injury on Virginia.                            If it does,

then    Virginia      may     well      possess      standing     to    challenge        the

individual       mandate.        But     if    the    VHCFA    serves       merely      as   a

smokescreen         for     Virginia’s         attempted       vindication         of    its

citizens’ interests, then settled precedent bars this action.



                                             III.

       Faithful      application        of    the    above    principles      mandates       a

single answer to this question:                     the VHFCA does not confer on

Virginia     a    sovereign      interest       in    challenging      the    individual

mandate.         Virginia lacks standing to challenge the individual

                                              23
mandate    because     the    mandate      threatens      no     interest      in   the

“enforceability” of the VHCFA.              Maine v. Taylor, 

,

137 (1986).

      Contrary to Virginia’s arguments, the mere existence of a

state law like the VHCFA does not license a state to mount a

judicial challenge to any federal statute with which the state

law   assertedly     conflicts.        Rather,     only      when    a    federal   law

interferes with a state’s exercise of its sovereign “power to

create and enforce a legal code” does it inflict on the state

the requisite injury-in-fact.           

(emphasis

added); see also Franchise Tax Bd. v. Constr. Laborers Vacation

Trust,    

,    21   (1983)     (holding     that      “federal    courts

should not entertain suits by the States to declare the validity

of their regulations despite possibly conflicting federal law”).

      Thus, in each case relied on by Virginia, in which a state

was found to possess sovereign standing, the state statute at

issue regulated behavior or provided for the administration of a

state    program.      See   

    (regulating

importation of baitfish); 

(regulating

abortion); 

(establishing “procedure

to expunge convictions of domestic violence misdemeanors” for

purposes of “restoring any firearm rights”); Texas Office of

Pub. Util. Counsel v. FCC, 

, 409 (5th Cir. 1999)

(establishing     telecommunications         aid   programs         for   schools   and

                                        24
libraries); Alaska v. U.S. Dep’t of Transp., 

, 442-

43 (D.C. Cir. 1989) (regulating airline price advertising); Ohio

v. U.S. Dep’t of Transp., 

, 230 (6th Cir. 1985)

(regulating shipment of hazardous nuclear materials).                       The state

statutes in each of these cases reflect the “exercise of [a

state’s] sovereign power over individuals and entities within

the relevant jurisdiction.”            

.

       By contrast, the VHCFA regulates nothing and provides for

the    administration      of   no    state     program.      Instead,      it   simply

purports to immunize Virginia citizens from federal law.                            In

doing so, the VHCFA reflects no exercise of “sovereign power,”

for Virginia lacks the sovereign authority to nullify federal

law.     See   Mayo   v.    United      States,    

,    445   (1943)

(stating    the   “corollary”         of   the    Supremacy       Clause   that   “the

activities of the Federal Government are free from regulation by

any    state”); Johnson         v.   Maryland,     

,   55-56    (1920)

(noting the “entire absence of power on the part of the States

to touch . . . the instrumentalities of the United States”).

       Moreover, the individual mandate does not affect Virginia’s

ability to enforce the VHCFA.                 Rather, the Constitution itself

withholds from Virginia the power to enforce the VHCFA against

the federal government.              See Ohio v. Thomas, 

, 283

(1899) (stating that “federal officers who are discharging their

duties in a state . . . are not subject to the jurisdiction of

                                           25
the    state”).         Given      this   fact,      the    VHCFA   merely      declares,

without legal effect, that the federal government cannot apply

insurance       mandates     to     Virginia’s       citizens.      This    non-binding

declaration          does   not    create      any    genuine    conflict       with   the

individual        mandate,      and     thus    creates     no   sovereign       interest

capable of producing injury-in-fact.

       Nor do we find at all persuasive Virginia’s contention that

the use of the passive voice in the VHCFA -- i.e., a declaration

that       no   Virginia     resident      “shall      be   required”      to    maintain

insurance       –-    provides      a   regulation     of    private    employers      and

localities that conflicts with the individual mandate.                           This is

so because the individual mandate regulates only individuals; it

does not in any way regulate private employers or localities.

See 26 U.S.C. § 5000A(a).               Thus, Virginia has suffered no injury

to     its      sovereign         interest      in    regulating       employers       and

localities. 2



       2
       Moreover, even if the individual mandate did some day in
the future interfere with the asserted application of the VHCFA
to localities and private employers, it would not now provide
Virginia standing. Only injury that is “actual or imminent, not
conjectural or hypothetical” can support Article III standing.

(internal quotation omitted). Any future
conflict between the individual mandate and the purported
regulation of localities or private employers contained in the
VHCFA is at best conjectural. Virginia has identified no actual
non-federal insurance requirement that runs afoul of the VHCFA,
nor has it offered evidence that any private employer or
locality is contemplating the imposition of such a requirement.


                                               26
       In sum, Virginia does not possess a concrete interest in

the “continued enforceability” of the VHCFA, 

,   because   it   has    not    identified    any   plausible,    much   less

imminent, enforcement of the VHCFA that might conflict with the

individual mandate.         Rather, the only apparent function of the

VHCFA is to declare Virginia's opposition to a federal insurance

mandate.    And, in fact, the timing of the VHCFA, along with the

statements accompanying its passage, make clear that Virginia

officials   enacted    the    statute      for   precisely   this    declaratory

purpose.    See Va. Governor’s Message (Mar. 24, 2010) (Governor

stating at VHCFA signing ceremony that “access to quality health

care . . . should not be accomplished through an unprecedented

federal mandate”); 

also remarking that

the VHCFA “sent a strong message that we want no part of this

national fiasco”).      While this declaration surely announces the

genuine opposition of a majority of Virginia’s leadership to the

individual mandate, it fails to create any sovereign interest in

the judicial invalidation of that mandate.                   See 

(“The presence of a disagreement, however sharp and

acrimonious it may be, is insufficient by itself to meet Art.

III’s requirements.”).

       Given that the VHCFA does nothing more than announce an

unenforceable    policy      goal    of   protecting    Virginia’s    residents

from federal insurance requirements, Virginia's “real interest”

                                          27
is    not   in    the    VHCFA     itself,        but    rather     in        achieving       this

underlying goal.          

; see 

(noting

that    “[i]nterests       of     private         parties    are        obviously       not     in

themselves       sovereign       interests,        and    they     do     not    become       such

simply by virtue of the State’s aiding in their achievement”).

But a state may not litigate in federal court to protect its

residents “from the operation of [a] federal statute[],” Georgia

v. Pa. R. Co., 

, 447 (1945), nor can it escape this

bar merely by codifying its objection to the federal statute in

question.        See New Jersey v. Sargent, 

, 334 (1926)

(dismissing       an    action    whose      “real       purpose”       was     “to    obtain    a

judicial     declaration         that    .   .     .     Congress       exceeded        its    own

authority”).

       The presence of the VHCFA neither lessens the threat to

federalism posed by this sort of lawsuit nor provides Virginia

any    countervailing       interest         in    asserting        the       rights     of    its

citizens.        Cf. 

.                    After all, the action

of a state legislature cannot render an improper state parens

patriae     lawsuit      less     invasive        of     federal    sovereignty.               See

(emphasizing that “it is no part of

[a state’s] duty or power to enforce [its citizens’] rights in

respect of their relations with the federal government”).                                      Nor

does a      state      acquire    some    special        stake     in    the     relationship

between     its     citizens      and    the       federal    government              merely    by

                                             28
memorializing       its   litigation       position         in     a     statute.         See

Illinois Dep’t of Transp. v. Hinson, 

, 373 (7th Cir.

1997).     To the contrary, the VHCFA, because it is not even

hypothetically       enforceable         against      the        federal       government,

raises     only     “abstract       questions        of     political           power,     of

sovereignty, of government.”               

.                        The

Constitution       does   not   permit    a     federal     court        to    answer     such

questions.        See 

courts are “without authority

to pass abstract opinions upon the constitutionality of acts of

Congress”).

     To permit a state to litigate whenever it enacts a statute

declaring its opposition to federal law, as Virginia has in the

VHCFA, would convert the federal judiciary into a “forum” for

the vindication of a state’s “generalized grievances about the

conduct    of     government.”        Flast     v.   Cohen,        

,    106

(1968).    Under Virginia’s standing theory, 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.         For   example,

Virginia    could     enact     a   statute      declaring        that        “no   Virginia

resident shall be required to pay Social Security taxes” and




                                          29
proceed to file a lawsuit challenging the Social Security Act. 3

Or Virginia could enact a statute codifying its constitutional

objection to the CIA’s financial reporting practices and proceed

to litigate the sort of “generalized grievance[]” about federal

administration      that    the   Supreme    Court   has   long   held   to   be

“committed to the . . . political process.”                United States v.

Richardson,   

,   179-80    (1974)   (internal    quotation

omitted).

     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.

See, e.g., id.; Schlesinger v. Reservists Comm. to Stop the War,

, 227 (1974).         We cannot accept a theory of standing

that so contravenes settled jurisdictional constraints.




     3
       At oral argument, Virginia appeared unconcerned about the
prospect of such lawsuits, merely repeating the truism set forth
in its brief that “litigants frequently have standing to lose on
the merits.”   Appellee’s Br. at 17.   This argument fails.   The
Supreme   Court   has   clearly  disavowed   such   “hypothetical
jurisdiction,” emphasizing that jurisdictional requirements are
mandatory in all cases. 

. The Court has
explained that in cases involving baseless substantive claims,
it is all the more important that we respect the “constitutional
limits set upon courts in our system of separated powers.” 

                                      30
                                           IV.

        In concluding that Virginia lacks standing to challenge the

individual    mandate,          we   recognize     that    the     question    of    that

provision’s constitutionality involves issues of unusual legal,

economic,     and       political      significance.             The    Constitution,

however,    requires          that   courts     resolve    disputes     “not    in   the

rarified atmosphere of a debating society, but in a concrete

factual context conducive to a realistic appreciation of the

consequences       of    judicial      action.”           Valley    Forge     Christian

College v. Americans United for Separation of Church and State,

Inc., 

, 472 (1982).                   Virginia can provide no such

“concrete     factual         context”     here,    because        it   challenges     a

statutory provision that applies not to states, but exclusively

to individuals.

     Given this fact, Virginia lacks the “personal stake” in

this case essential to “assure that concrete adverseness which

sharpens the presentation of issues.”                 Massachusetts v. 

(quoting Baker v. Carr, 

, 204 (1962)).

Thus,    Virginia’s      litigation      approach     might      well   diverge      from

that of an individual to whom the challenged mandate actually

does apply.        See United States v. Johnson, 

, 305

(1943) (per curiam) (explaining that the “actual antagonistic

assertion of rights” serves as a “safeguard essential to the

integrity     of        the     judicial      process”       (internal        quotation

                                           31
omitted));          

   (noting      that    rules   of

standing          aim   to    prevent     state         “bureaucrats”        and    “publicity

seekers” from “wresting control of litigation from the people

directly affected”).

       Moreover, the lack of factual context here impedes analysis

of the underlying constitutional disputes.                          See Comite de Apoyo

a los Trabajadores Agricolas v. U.S. Dep’t of Labor, 

,        513     (4th     Cir.     1993)     (explaining        that      the    “concrete

adverseness” required by standing rules “helps reduce the risk

of     an     erroneous          or   poorly       thought-out      decision”        (internal

quotation omitted)).                  For example, both parties premise their

Commerce Clause arguments on their competing characterizations

of what the individual mandate regulates.                               Compare Appellee’s

Br. at 23 (arguing that § 5000A regulates the “passive status of

being uninsured”) with Appellant’s Br. at 45-48 (arguing that

§ 5000A           regulates       the    financing         of    consumers’         inevitable

participation in the health care market).                           A number of factors

might affect the validity of these characterizations, including

a taxpayer’s current possession of health insurance, current or

planned       future       consumption        of    health      care,   or    other    related

voluntary action.             See Thomas More Law Center v. Obama, --- F.3d

--- (6th Cir. 2011) (No. 10-2388, slip op. at 52-53) (opinion of

Sutton,       J.).         The    case   at     hand     lacks    the     concrete    factual

context critical to a proper analysis of these issues.

                                                   32
     In sum, the significance of the questions at issue here

only heightens the importance of waiting for an appropriate case

to reach the merits.   This is not such a case.



                                V.

     For the foregoing reasons, we vacate the judgment of the

district court and remand to that court, with instructions to

dismiss the case for lack of subject-matter jurisdiction.



                                              VACATED AND REMANDED




                                33