Filed: Sep. 15, 2011
Latest Update: Feb. 22, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 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 No. 11-1057 COMMERCE OF THE UNITED STATES OF AMERICA, Amici Curiae, AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; THE
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 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 No. 11-1057 COMMERCE OF THE UNITED STATES OF AMERICA, Amici Curiae, AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; THE A..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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
No. 11-1057
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;
2 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 3
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;
4 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 5
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;
6 VIRGINIA v. SEBELIUS
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 California-Berkeley;
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;
VIRGINIA v. SEBELIUS 7
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;
8 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 9
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;
10 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 11
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;
12 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 13
STATE OF OREGON; STATE OF
VERMONT; CHRISTINE GREGOIRE,
Governor of Washington; SERVICE
EMPLOYEES INTERNATIONAL UNION;
CHANGE TO WIN,
Amici Supporting Appellant,
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;
14 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 15
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;
16 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 17
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.
18 VIRGINIA v. SEBELIUS
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
No. 11-1058
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;
VIRGINIA v. SEBELIUS 19
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;
20 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 21
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;
22 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 23
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 California-Berkeley;
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;
24 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 25
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;
26 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 27
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;
28 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 29
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;
30 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 31
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;
32 VIRGINIA v. SEBELIUS
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;
VIRGINIA v. SEBELIUS 33
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;
34 VIRGINIA v. SEBELIUS
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.
VIRGINIA v. SEBELIUS 35
COUNSEL
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. Cuccinelli, II, Attor-
ney General of Virginia, Stephen R. McCullough, Senior
Appellate Counsel, Charles E. James, Jr., Chief Deputy Attor-
ney General, Wesley G. Russell, Jr., Deputy Attorney Gen-
eral, 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, Washing-
ton, D.C., for American Association of People with Disabili-
ties, 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 Citi-
zens Law Center, National Women’s Health Network, and
The Ovarian Cancer National Alliance, Amici Supporting
36 VIRGINIA v. SEBELIUS
Appellant/Cross-Appellee. Ian Millhiser, CENTER FOR
AMERICAN PROGRESS, Washington, D.C., for American
Nurses Association, American Academy of Pediatrics, Incor-
porated, American Medical Student Association, Center for
American Progress, d/b/a Doctors for America, National His-
panic Medical Association, and National Physicians Alliance,
Amici Supporting Appellant/Cross-Appellee. Gillian E. Metz-
ger, 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 ROBIN-
SON & LEWIS PLLC, Washington, D.C., for Young Invinci-
bles, 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 Coun-
sel, AMERICAN CANCER SOCIETY, Washington, D.C.;
John Longstreth, Molly Suda, K&L GATES LLP, Washing-
ton, D.C., for American Cancer Society, American Cancer
Society Cancer Action Network, American Diabetes Associa-
tion, 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. Vla-
deck, Washington, D.C.; F. Paul Bland, Jr., CHAVEZ &
GERTLER, Washington, D.C., for Professors of Federal
Jurisdiction, Amici Supporting Appellant/Cross-Appellee.
Stuart R. Cohen, Stacy Canan, AARP FOUNDATION LITI-
GATION; Michael Schuster, AARP, Washington, D.C., for
AARP, Amicus Supporting Appellant/Cross-Appellee. Mar-
tha 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-
VIRGINIA v. SEBELIUS 37
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, Phy-
sicians 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, Incorpo-
rated, and Women’s Law Project, Amici Supporting
Appellant/Cross-Appellee. Thomas D. Domonoske, Harrison-
burg, 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.;
38 VIRGINIA v. SEBELIUS
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 HOSPI-
TALS, Alexandria, Virginia, for American Hospital Associa-
tion, Association of American Medical Colleges, Catholic
Health Association of the United States, Federation of Ameri-
can Hospitals, National Association of Children’s Hospitals,
and National Association Of Public Hospitals And Health
Systems, Amici Supporting Appellant/Cross-Appellee. Eliza-
beth B. Wydra, Douglas T. Kendall, CONSTITUTIONAL
ACCOUNTABILITY CENTER, Washington, D.C., for Con-
stitutional 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. Har-
ris, 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 Gen-
eral 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 Ore-
gon, Salem, Oregon; William H. Sorrell, Attorney General of
Vermont, Montpelier, Vermont, for States of California, Con-
necticut, Delaware, Hawaii, Iowa, Maryland, New York, Ore-
gon, and Vermont, Amici Supporting Appellant/Cross-
Appellee. Adam Berger, Kristin Houser, Rebecca J. Roe, Wil-
liam Rutzick, SCHROETER, GOLDMARK & BENDER,
Seattle, Washington, for Christine O. Gregoire, Governor of
VIRGINIA v. SEBELIUS 39
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, Washing-
ton, D.C., for Change to Win, Amici Supporting
Appellant/Cross-Appellee. Jay Alan Sekulow, Stuart J. Roth,
Colby M. May, AMERICAN CENTER FOR LAW & JUS-
TICE, Washington, D.C.; John P. Tuskey, Laura B. Her-
nandez, 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 Chal-
lenge the President & Congress on Health Care, Amici Sup-
porting Appellee/Cross-Appellant. Robert Luther III,
KNICELY & ASSOCIATES, PC, Williamsburg, Virginia;
Timothy Sandefur, Luke Wake, PACIFIC LEGAL FOUN-
DATION, Sacramento, California, for Matthew Sissel, Pacific
Legal Foundation, and Americans for Free Choice in Medi-
cine, 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 ENTER-
PRISE INSTITUTE, Washington, D.C., for Cato Institute,
Competitive Enterprise Institute, and Randy E. Barnett, Pro-
40 VIRGINIA v. SEBELIUS
fessor, Amici Supporting Appellee/Cross-Appellant. Deborah
J. Dewart, Swansboro, North Carolina, for Justice and Free-
dom 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 Sup-
porting 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 Own-
ers Foundation, American Life League, Incorporated, Institute
on the Constitution, The Lincoln Institute for Research and
Education, Public Advocate of the United States, Conserva-
tive Legal Defense and Education Fund, The Liberty Commit-
tee, 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 Sup-
porting Appellee/Cross-Appellant. Scott C. Oostdyk, Robert
L. Hodges, H. Carter Redd, Lisa M. Sharp, Matthew D.
VIRGINIA v. SEBELIUS 41
Fender, MCGUIREWOODS LLP, Richmond, Virginia, for
Physician Hospitals of America, Amicus Supporting
Appellee/Cross-Appellant. Toussaint Tyson, Gainesville,
Florida, Amicus Supporting Appellee/Cross-Appellant.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The Commonwealth of Virginia ("Virginia") brings this
action against Kathleen Sebelius, the Secretary of the Depart-
ment of Health and Human Services ("the Secretary"). Vir-
ginia challenges one provision of the Patient Protection and
Affordable Care Act as an unconstitutional exercise of con-
gressional 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 plain-
tiff 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
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 ___
42 VIRGINIA v. SEBELIUS
(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 man-
date.
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. Not-
withstanding 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 con-
tains no enforcement mechanism.
Because the individual mandate applies only to individual
persons, not states, the Secretary moved to dismiss the suit for
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. Vir-
ginia insisted that it acquired standing from the asserted "col-
lision" 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
VIRGINIA v. SEBELIUS 43
event, the mandate withstands constitutional attack. We
review de novo the district court’s ruling as to standing. See
Benham v. City of Charlotte, 635 F.3d 129, 134 (4th Cir.
2011). Because we hold that Virginia lacks standing,1 we can-
not reach the question of whether the Constitution authorizes
Congress to enact the individual mandate. See Steel Co. v.
Citizens for a Better Env’t,
523 U.S. 83, 101-02 (1998).
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 out-
side" 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." Id.
The standing doctrine prevents federal courts from trans-
gressing this constitutional limit. See Lujan v. Defenders of
Wildlife,
504 U.S. 555, 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 "irre-
ducible constitutional minimum of standing."
Id. at 560.
Specifically, a plaintiff must demonstrate that: (1) it has
"suffered an injury in fact"; (2) there exists a "causal connec-
tion between the injury and the conduct complained of"; and
1
In Liberty, we held that the Anti-Injunction Act (AIA) barred two tax-
payers 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, 465 U.S. 367, 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.,
549 U.S. 422, 431 (2007) (noting that "a federal court has leeway to
choose among threshold" jurisdictional grounds for dismissing a case
(internal quotation omitted)).
44 VIRGINIA v. SEBELIUS
(3) a favorable judicial ruling will "likely" redress that injury.
Id. (internal quotations omitted). The burden rests with the
party invoking federal jurisdiction, here Virginia, to "estab-
lish[ ] these elements."
Id. at 561. Only if Virginia meets the
burden of establishing standing does the Constitution permit
a federal court to address the merits of the arguments pre-
sented. See
Steel, 523 U.S. at 101-02.
Standing here turns on whether Virginia has suffered the
necessary "injury in fact." To satisfy that requirement, Vir-
ginia must demonstrate that the individual mandate in the
Affordable Care Act "inva[des]" its "legally protected inter-
est," in a manner that is both "concrete and particularized"
and "actual or imminent."
Lujan, 504 U.S. at 560 (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,
477 U.S. 41, 50 n.17 (1986), does
not commandeer Virginia’s enforcement officials, cf. New
York v. United States,
505 U.S. 144 (1992), and does not
threaten Virginia’s sovereign territory, cf. Massachusetts v.
EPA,
549 U.S. 497, 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 pos-
sesses an interest in its "exercise of sovereign power over
individuals and entities within the relevant jurisdiction,"
which "involves the power to create and enforce a legal
code." Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S.
592, 601 (1982)). A federal statute that hinders a state’s exer-
cise 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
VIRGINIA v. SEBELIUS 45
v. United States, 539 F.3d 1236, 1242 (10th Cir. 2008); see
also Diamond v. Charles,
476 U.S. 54, 62 (1986) (noting in
dicta that "a State has standing to defend the constitutionality
of its statute" (emphasis added)). Virginia argues that the indi-
vidual 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 Secre-
tary, 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
Snapp,
458 U.S. at 610 n.16; Massachusetts v. Mellon,
262 U.S. 447,
485-86 (1923). This prohibition rests on the recognition that
a state possesses no legitimate interest in protecting its citi-
zens from the government of the United States. See
Mellon,
262 U.S. at 485-86. With respect to the federal government’s
relationship to individual citizens, "it is the United States, and
not the state, which represents [citizens] as parens patriae."
Id.
at 486. When a state brings a suit seeking to protect individu-
als from a federal statute, it usurps this sovereign prerogative
of the federal government and threatens the "general suprem-
acy of federal law." Pennsylvania v. Kleppe,
533 F.2d 668,
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
id. at 677-78 (noting that the "feder-
alism interest" in "avoidance of state inference with the exer-
cise 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 citi-
zens’ interests, then settled precedent bars this action.
46 VIRGINIA v. SEBELIUS
III.
Faithful application of the above principles mandates a sin-
gle 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
mandate because the mandate threatens no interest in the "en-
forceability" of the VHCFA. Maine v. Taylor, 477 U.S. 131,
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.
Snapp, 458 U.S. at 601 (emphasis
added); see also Franchise Tax Bd. v. Constr. Laborers Vaca-
tion Trust,
463 U.S. 1, 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
Taylor, 477 U.S. at 132-33 (regulating
importation of baitfish);
Diamond, 476 U.S. at 59-60 (regulat-
ing abortion);
Wyoming, 539 F.3d at 1239-40 (establishing
"procedure to expunge convictions of domestic violence mis-
demeanors" for purposes of "restoring any firearm rights");
Texas Office of Pub. Util. Counsel v. FCC,
183 F.3d 393, 409
(5th Cir. 1999) (establishing telecommunications aid pro-
grams for schools and libraries); Alaska v. U.S. Dep’t of
Transp.,
868 F.2d 441, 442-43 (D.C. Cir. 1989) (regulating
airline price advertising); Ohio v. U.S. Dep’t of Transp.,
766
F.2d 228, 230 (6th Cir. 1985) (regulating shipment of hazard-
ous nuclear materials). The state statutes in each of these
cases reflect the "exercise of [a state’s] sovereign power over
VIRGINIA v. SEBELIUS 47
individuals and entities within the relevant jurisdiction."
Snapp, 458 U.S. at 601.
By contrast, the VHCFA regulates nothing and provides for
the administration of no state program. Instead, it simply pur-
ports 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,
319 U.S. 441, 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,
254 U.S. 51, 55-56 (1920) (not-
ing 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 Virgin-
ia’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,
173 U.S. 276, 283 (1899) (stating that "federal officers who
are discharging their duties in a state . . . are not subject to the
jurisdiction of 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 insur-
ance –- provides a regulation of private employers and locali-
ties 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
48 VIRGINIA v. SEBELIUS
injury to its sovereign interest in regulating employers and local-
ities.2
In sum, Virginia does not possess a concrete interest in the
"continued enforceability" of the VHCFA,
Taylor, 477 U.S.
at 137, 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 func-
tion 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 pre-
cisely this declaratory purpose. See Va. Governor’s Message
(Mar. 24, 2010) (Governor stating at VHCFA signing cere-
mony that "access to quality health care . . . should not be
accomplished through an unprecedented federal mandate");
id. (Lieutenant Governor 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 indi-
vidual mandate, it fails to create any sovereign interest in the
judicial invalidation of that mandate. See
Diamond, 476 U.S.
at 62 ("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
2
Moreover, even if the individual mandate did some day in the future
interfere with the asserted application of the VHCFA to localities and pri-
vate employers, it would not now provide Virginia standing. Only injury
that is "actual or imminent, not conjectural or hypothetical" can support
Article III standing. Lujan, 504 U.S. at 560 (internal quotation omitted).
Any future conflict between the individual mandate and the purported reg-
ulation 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.
VIRGINIA v. SEBELIUS 49
an unenforceable policy goal of protecting Virginia’s resi-
dents from federal insurance requirements, Virginia’s "real
interest" is not in the VHCFA itself, but rather in achieving
this underlying goal. Snapp, 458 U.S. at 600; see
id. at 602
(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 resi-
dents "from the operation of [a] federal statute[]," Georgia v.
Pa. R. Co.,
324 U.S. 439, 447 (1945), nor can it escape this
bar merely by codifying its objection to the federal statute in
question. See New Jersey v. Sargent,
269 U.S. 328, 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 citi-
zens. Cf. Kleppe, 533 F.2d at 677. After all, the action of a
state legislature cannot render an improper state parens patriae
lawsuit less invasive of federal sovereignty. See
Mellon, 262
U.S. at 485-86 (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 citi-
zens and the federal government merely by memorializing its
litigation position in a statute. See Illinois Dep’t of Transp. v.
Hinson,
122 F.3d 370, 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."
Mellon,
262 U.S. at 485. The Constitution does not permit a federal
court to answer such questions. See
id. (noting that courts are
"without authority to pass abstract opinions upon the constitu-
tionality of acts of Congress").
50 VIRGINIA v. SEBELIUS
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,
392 U.S. 88, 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 Vir-
ginia resident shall be required to pay Social Security taxes"
and proceed to file a lawsuit challenging the Social Security
Act.3 Or Virginia could enact a statute codifying its constitu-
tional 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,
418 U.S. 166, 179-80 (1974) (internal quota-
tion 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 politi-
cal, would fall beyond a state’s power to litigate in federal
court. See, e.g., id.; Schlesinger v. Reservists Comm. to Stop
the War,
418 U.S. 208, 227 (1974). We cannot accept a theory
of standing that so contravenes settled jurisdictional con-
straints.
3
At oral argument, Virginia appeared unconcerned about the prospect of
such lawsuits, merely repeating the truism set forth in its brief that "liti-
gants frequently have standing to lose on the merits." Appellee’s Br. at 17.
This argument fails. The Supreme Court has clearly disavowed such "hy-
pothetical jurisdiction," emphasizing that jurisdictional requirements are
mandatory in all cases.
Steel, 523 U.S. at 101. 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."
Id. at 110.
VIRGINIA v. SEBELIUS 51
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, how-
ever, 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 conse-
quences of judicial action." Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 472 (1982). Virginia can provide no such "con-
crete factual context" here, because it challenges a statutory
provision that applies not to states, but exclusively to individ-
uals.
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.
EPA,
549 U.S. at 517 (quoting Baker v. Carr,
369 U.S. 186, 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,
319 U.S. 302, 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 quo-
tation omitted));
Hinson, 122 F.3d at 373 (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,
995 F.2d 510, 513 (4th Cir. 1993) (explaining that the "con-
crete adverseness" required by standing rules "helps reduce
the risk of an erroneous or poorly thought-out decision"
(internal quotation omitted)). For example, both parties prem-
52 VIRGINIA v. SEBELIUS
ise 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 con-
sumers’ inevitable participation in the health care market). A
number of factors might affect the validity of these character-
izations, 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.
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
