The Jurisdictional Problem in the ACA case

A new amicus brief in the Fifth Circuit

Today an amicus brief was filed in the Affordable Care Act case in the Fifth Circuit, on behalf of Kevin Walsh, Michael McConnell, and me. The district court gave a declaratory judgment (purporting to invalidate the ACA). The gist of our argument is that there is no statutory subject-matter jurisdiction under the Skelly Oil rule: a federal court has no statutory subject-matter jurisdiction to grant declaratory relief when neither of the parties could seek non-declaratory relief. If you want to read the brief–which is brief indeed–you can find it here. And a hearty thank you to Raffi Melkonian for his assistance with the filing.