On roving constitutional watchdogs

In Commonwealth of Virginia v. Sebelius, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Davis and Wynn, held that Virginia lacks standing to bring a pre-enforcement challenge to a provision of President Obama's health care reform law.

Judge Motz wrote that "if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court. . . . We cannot accept a theory of standing that so contravenes settled jurisdictional constraints." She concluded: "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."

Somewhat similarly, the panel mostly avoided the merits in Liberty University v. Geithner, finding that the federal courts were barred from acting by the Anti-Injunction Act, notwithstanding the disagreement of both parties over whether the sanction for failure to comply with the individual mandate is properly considered a "tax." Judge Wynn concurred on the jurisdictional issue, and Judge Davis dissented, and both added some individual thoughts on the merits.