Case: 15-40238

Document: 00513103805

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SCOTT A. KELLER
Solicitor General

Date Filed: 07/02/2015

Scott.Keller@texasattorneygeneral.gov
(512) 936-2725

July 2, 2015
Mr. Lyle W. Cayce, Clerk
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, Louisiana 70130-3408
Re:

No. 15-40238, Texas, et al. v. United States, et al.

Dear Mr. Cayce:

Pursuant to this Courts order, Plaintiffs respectfully submit this
supplemental letter brief concerning Arizona State Legislature v.
Arizona Independent Redistricting Commission, 2015 WL 2473452 (U.S.
June 29, 2015).
1.
Arizona State Legislature addressed facts somewhat
different than here, but its reasoning reinforces the Plaintiff States
standing in several respects. There, Arizona voters adopted an
initiative that removed redistricting power from the Arizona
Legislature and vested it in the Arizona Independent Redistricting
Commission. The Arizona Legislature sued the Commission, seeking a
declaration that the Elections Clause of the U.S. Constitution
precluded the withdrawal of redistricting power from the Arizona
Legislature. The Supreme Court rejected the constitutional challenge
on the merits, while affirming that the Arizona Legislature had
standing. Ariz. State Leg., 2015 WL 2473452, at *5.
2.
Arizona State Legislatures reasoning supports Plaintiffs
standing, but nothing in it is necessary for Plaintiffs to demonstrate
standing. Plaintiffs demonstrated their strong likelihood of success in
showing standing based on direct financial injuries regarding one or
more of their drivers-license programs. See Appellees (States) Br. 2627. Plaintiffs also demonstrated a strong likelihood of success in
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Case: 15-40238

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Letter to Mr. Lyle W. Cayce, Clerk

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showing standing based on healthcare, education, and law-enforcement
costs directly caused by DAPA. See States Br. 33-37.
In other words, Plaintiffs have standing under principles that
would apply to any non-governmental plaintiff. Plaintiffs ample
evidentiary submission on the motion for a preliminary injunction
demonstrated a strong likelihood of success in showing concrete
financial injuries traceable to DAPA and redressable by the relief they
seek. See Amicus Br. of Prof. Ernest A. Young 6-15. Defendants
argument that the States could change their conduct to avoid some (but
not all) of those costs does not defeat standing as to litigants generally.
See States Br. 27-29. Furthermore, as to the sovereign States, this
argument would simply identify another cognizable injury: being
pressured to change state law constitutes an injury. Texas v. United
States, __ F.3d __, 2015 WL 3386436, at *3 (5th Cir. May 26, 2015).
Arizona State Legislature just confirmed that an institutional plaintiff
asserting an institutional injury has standing. 2015 WL 2473452, at
*10. And the States would suffer an institutional injury from federal
pressure to change their laws because states have a sovereign interest
in the power to create and enforce a legal code. Texas, 2015 WL
3386436, at *4 (quoting Tex. Office of Pub. Util. Counsel v. FCC, 183
F.3d 393, 449 (5th Cir. 1999), in turn quoting Alfred L. Snapp & Son,
Inc. v. Puerto Rico, 458 U.S. 592, 601 (1982)).
Plaintiffs need not wait to incur injuries before bringing suit.
Standing exists if the threatened injury is certainly impending or
there is a substantial risk that the harm will occur. Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Clapper
v. Amensty Intl, USA, 133 S. Ct. 1138, 1150 n.5 (2013)); see States Br.
25. Accordingly, just as the Arizona Legislature had standing before it
actually enacted a redistricting plan and violate[d] the Arizona
Constitution, Plaintiffs suit here is not premature, nor [are their]
alleged injur[ies] too conjectural or hypothetical to establish
standing. Ariz. State Leg., 2015 WL 2473452, at *9 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
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Letter to Mr. Lyle W. Cayce, Clerk

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3.
Arizona State Legislature bolstered Plaintiffs independent
parens patriae standing theory by distinguishing Massachusetts v.
Mellon, 262 U.S. 447 (1923), a case Defendants have cited in attacking
that theory. See Appellants (DOJ) Br. 32; DOJ Reply Br. 11.
The Supreme Court emphasized that States standing to sue the
federal government as parens patriae depends on the kind of claim
that the state advances. Ariz. State Leg., 2015 WL 2473452, at *10
n.10. In illustrating this point, the Supreme Court approvingly cited its
decision finding standing in Massachusetts v. EPA, 549 U.S. 497 (2007).
And, as Plaintiffs have explained, Massachusetts distinguishes between
States suing to enforce federal law and suing to block federal law. See
id. at 520 n.17 (explaining that a State can sue the federal government
under a parens patriae theory when it is asserting rights under federal
law rather than seeking to protect her citizens from the operation of
federal statutes).
In Mellon, the Court found no standing where Massachusetts
sued the federal government to block the operation of federal statutes.
Ariz. State Leg., 2015 WL 2473452, at *10 n.10; Massachusetts v. EPA,
549 U.S. at 520 n.17. Here, in contrast, Plaintiffs seek to enforce federal
statutes. In other words, this lawsuit is analogous to Massachusettss
later suit against the EPA, where the Supreme Court found standing.
4.
Arizona State Legislature confirms that States are entitled
to special solicitude in [a courts] standing analysis. Ariz. State Leg.,
2015 WL 2473452, at *10 n.10 (quoting Massachusetts, 549 U.S. at
520). In Arizona State Legislature, standing was premised on the fact
that the Arizona Legislatures redistricting powers were strip[ped]
and nullif[ied]. 2015 WL 2473452, at *8, *10. The Court recognized
that was an institutional injury. Id. at *10.
Similarly, the States suffer institutional injuries when federal
agencies fail to abide by congressional enactments that preempt state
prerogatives. When a State enters the Union, it surrenders certain
sovereign prerogatives that become lodged in the Federal
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Government. Massachusetts, 549 U.S. at 519. A States agreement to
have its authority preempted on such sovereign mattersfor instance,
determining the lawful presence of individuals within its bordersis
premised on the understanding that Congresss enactments serve to
protect the States. Id.
Due to the preemption of their sovereign prerogatives, States
have a quasi-sovereign interest in the enforcement of federal laws
that preempt surrendered prerogatives. Id. at 520. States are not
relegated to the role of mere provinces or political corporations, but
retain the dignity, though not the full authority, of sovereignty. Id. at
519 (quoting Alden v. Maine, 527 U.S. 706, 715 (1999)). For example,
although the federal government has broad power over the status of
aliens and [f]ederal governance of immigration and alien status is
extensive and complex, the pervasiveness of federal regulation does
not diminish the importance of immigration policy to the States, which
bear[] many of the consequences of unlawful immigration. Arizona v.
United States, 132 S. Ct. 2492, 2498, 2499, 2500 (2012).
When the Executive Branch has abdicated its responsibility
under [federal statutes], Massachusetts, 549 U.S. at 505, it negates the
basis on which the States agreed to allow federal preemption of their
sovereign prerogatives. See ROA.4432-43 (district courts opinion);
Amicus Br. of Prof. Ernest A. Young 15-20. For this reason, States are
accorded special solicitude in demonstrating their standing to sue the
federal Executive. Ariz. State Leg., 2015 WL 2473452, at *10 n.10
(quoting Massachusetts, 549 U.S. at 520).
5.
Arizona State Legislature also refutes Defendants meritless
claim that Raines v. Byrd, 521 U.S. 811 (1997), makes the standing test
especially rigorous here. See DOJ Br. 19. Rainess especially
rigorous standard had no applicability in Arizona State Legislature
because the Arizona Legislatures suit does not touch or concern the
question whether Congress has standing to bring a suit against the
President, which raises unique separation-of-powers concerns absent
here. Ariz. State Leg., 2015 WL 2473452, at *10 n.12. Just so in this
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case. Plaintiffs are not part of the federal government. They are States
and state Governors. This suit does not call for resolution of whether
Congress has standing to sue the Executive. Raines no more applies
here than in Arizona State Legislature.
Justice Scalias dissent in Arizona State Legislature suggested
that plaintiffs should not have standing when they ask courts to
resolve direct disputes between two political branches of the same
government. 2015 WL 2473452, at *40 (emphasis added). Of course,
the majority of the Court did not adopt this view. Regardless, Justice
Scalias reasoning is inapplicable here. Plaintiffs are not suing other
branches within their own governments; they are suing another
government. Such lawsuits pose no difficulty, as exemplified by the
scores of original cases in the Supreme Court involving one State suing
another. See, e.g., States Br. 32 (citing Wyoming v. Oklahoma, 502 U.S.
437, 447-48 (1992), and Maryland v. Louisiana, 451 U.S. 725, 736-37
(1981)).
In all events, even under the novel and incorrect view that any
plaintiffs constitutional claim against the federal government makes
the standing test especially rigorous, there would be no need to apply
that principle here. The Court does not have to reach the constitutional
separation-of-powers claim to resolve this appeal. Plaintiffs raise two
statutory claims under the Administrative Procedure Act that entitle
them to the preliminary injunction. See States Br. 26 n.14. Indeed, both
the district court and the stay panel of this Court based their decisions
only on Plaintiffs notice-and-comment claim under that Act.
*

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The bottom line here remains simple. Plaintiffs have standing for
the same fundamental reason that the Court found standing in Arizona
State Legislature: This dispute... will be resolved... in a concrete
factual context conducive to a realistic appreciation of the consequences
of judicial action. 2015 WL 2473452, at *10 (quoting Valley Forge
Christian Coll. v. Am. United for Sep. of Church and State, Inc., 454
U.S. 464, 472 (1982)).
Sincerely,
/s/ Scott A. Keller
Scott A. Keller
Counsel for Plaintiffs-Appellees
cc:

All counsel of record

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