Fourth Circuit Rejects Mandate Challenges on Procedural Grounds

(Orin Kerr)

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."