After reading the Court’s decision in the Arizona Legislature case (I still haven’t made up my mind on the merits, but I’m inclined to agree with the Chief’s dissent), I noted that Justice Ginsburg’s standing analysis was very good news for the House of Representative’s challenge to Obamacare, and Texas’s challenge to executive action on immigration. On cue, Jonathan Turley, representing the House, filed notices of supplemental authority discussing the Arizona case. In response to a call for briefing from the 5th Circuit, the Texas SG has also filed a supplemental notice.

Perhaps most significantly, the Court distinguished Mass. v. Mellon, which the government has relied on extensively.

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 Massachusetts’s later suit against the EPA, where the Supreme Court found standing.

And reaffirms Mass. v. EPA’s discussion of “special solicitude,” in the context of the “institutional injury.”

Arizona State Legislature confirms that States are “entitled to special solicitude in [a court’s] 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 Legislature’s 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 Government.” Massachusetts, 549 U.S. at 519. A State’s agreement to have its authority preempted on such sovereign matters—for instance, determining the lawful presence of individuals within its borders—is premised on the understanding that Congress’s enactments serve to “protect” the States. Id.

…

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 court’s 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).

Texas also distinguishes Justice Scalia’s remarks as inapplicable here:

Justice Scalia’s 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 Scalia’s 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)).