Fourth Circuit Rejects Mandate Challenges on Procedural Grounds

The Fourth Circuit has decided its mandate cases. In Virginia v. Sebelius, the court rejects Virginia’s challenge on the grounds that the Commonwealth of Virginia lacks standing to sue. In Liberty University v. Geithner, the court holds that “[b]ecause this suit constitutes a pre-enforcement action seeking to restrain the assessment of a tax, the Anti-Injunction Act strips us of jurisdiction” to decide the merits of the case. (Note that whether an assessment is a “tax” for purposes of the Anti-Injunction Act is different from whether it is a tax for purposes of the Constitution’s taxing power.)

I should add, in light of my previous post, that both decisions are designated “published.”

UPDATE: A reader points out a technical inaccuracy in the Virginia v. Sebelius opinion. On page 18, the Fourth Circuit says, “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.” But this was only the ceremonial signing into law, not the actual signing into law. The laws had been signed into law two weeks earlier, on March 10 — see here, here, and here.