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.

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  1. Skelly Oil was not one I learned in federal courts. Maybe because it’s more a remedies thing. Never did get to remedies, much to my retrospective regret.

  2. I’ve actually had some experience arguing Skelly Oil in front of a Bankruptcy Court in Austin, Texas on a completely frivolous declaratory judgment action brought by a Chapter 7 Trustee (seeking a declaratory judgment that the bankruptcy estate “owned” certain trade secrets, in a situation where it was impossible for the Trustee to state a claim for misappropriation of those trade secrets – the ONLY cause of action authorized under the Texas Uniform Trade Secrets Act). Needless to say, I lost. Bankruptcy Courts HATE it when you try to tell them that they don’t have jurisdiction, whether it is an Article III argument under Stern v. Marshall or an argument that the Declaratory Judgment Act only creates an alternative remedy, it still requires a plausible independent cause of action, and it can’t create jurisdiction when no such independent cause of action exists. So they will often just ignore controlling precedent when it interferes with their ability to exercise authority. Let’s hope that the 5th Circuit is more congenial to such arguments.

  3. Given the law violates the Constitution, that rule is invalid. Pretty simple really.

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