How Does Standing Analysis in Arizona State Legislature Impact Texas v. United States (and Obamacare suits)?

June 29th, 2015

I have not followed the merits of Arizona State Legislature v. Arizona Independent Redistricting Comm’n closely enough to weigh in on the opinion. But relevant to my research is the discussion of standing, where the state Legislature sued in federal court over the redistrict commission’s authority to make binding determinations.  Specifically, how does this impact currently pending cases concerning suits by Texas against

RBG’s opinion offers a short summary of the standing requirements:

Trained on “whether the plaintiff is [a] proper party to bring [a particular lawsuit,]” standing is “[o]ne element” of the Constitution’s case-or-controversy limitation on federal judicial authority, expressed in Article III of the Constitu­ tion. Raines v. Byrd, 521 U. S. 811, 818 (1997). “To qual­ ify as a party with standing to litigate,” the Arizona Legis­ lature “must show, first and foremost,” injury in the form of “‘invasion of a legally protected interest’ that is ‘con­ crete and particularized’ and ‘actual or imminent.’” Ari- zonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)). The Legislature’s injury also must be “fairly traceable to the challenged action” and “redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___ (2013) (slip op., at 10) (internal quotation marks omitted).

RBG notes that the Election Clause delegates to the Legislature the authority over redistricting.

The Arizona Legislature maintains that the Elections Clause vests in it “primary responsibility” for redistricting. Brief for Appellant 51, 53. To exercise that responsibility, the Legislature urges, it must have at least the opportun- ity to engage (or decline to engage) in redistricting before the State may involve other actors in the redistricting process. See id., at 51–53.

Relatedly, the gravamen of Texas’s claim concerns the police powers, which is recognized (and indeed pre-exists) the 10th Amendment.

Because the Proposition at issue strips the Legislature of their constitutionally-recognized authority, there is Article III standing, even if the underlying claim is without merit.

Proposition 106, which gives the AIRC binding authority over redistricting, regardless of the Legislature’s action or inaction, strips the Legisla­ ture of its alleged prerogative to initiate redistricting. That asserted deprivation would be remedied by a court order enjoining the enforcement of Proposition 106. Al- though we conclude that the Arizona Legislature does not have the exclusive, constitutionally guarded role it asserts, see infra, at 24–35, one must not “confus[e] weakness on the merits with absence of Article III standing.” Davis v. United States, 564 U. S. ___, ___, n. 10 (2011) (slip op., at 19, n. 10); see Warth v. Seldin, 422 U. S. 490, 500 (1975) (standing “often turns on the nature and source of the claim asserted,” but it “in no way depends on the merits” of the claim).

This language is really, really helpful for Texas. I wonder if AMK slipped it into RBG’s opinion, as he certainly assigned it to her.


RBG distinguishes Massachusetts v. Mellon in a lengthy footnote, in response to Scalia’s dissent:

Massachusetts v. Mellon, 262 U. S. 447 (1923), featured in JUSTICE SCALIA’s dissent, post, at 4, bears little resemblance to this case. There, the Court unanimously found that Massachusetts lacked standing to sue the Secretary of the Treasury on a claim that a federal grant program exceeded Congress’ Article I powers and thus violated the Tenth Amendment. Id., at 480. If suing on its own behalf, the Court reasoned, Massachusetts’ claim involved no “quasi-sovereign rights actually invaded or threatened.” Id., at 485. As parens patriae, the Court stated: “[I]t is no part of [Massachusetts’] duty or power to enforce [its citizens’] rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae.” Id., at 485–486. As astutely observed, moreover: “The cases on the standing of states to sue the federal government seem to depend on the kind of claim that the state advances. The decisions . . . are hard to reconcile.” R. Fallon, J. Man­ ning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 263–266 (6th ed. 2009) (comparing Mellon with South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966) (rejecting on the merits the claim that the Voting Rights Act of 1965 invaded reserved powers of the States to determine voter qualifications and regulate elections), Nebraska v. Wyoming, 515 U. S. 1, 20 (1995) (recognizing that Wyoming could bring suit to vindicate the State’s “quasi-sovereign” interests in the physical environment within its domain (emphasis deleted; internal quotation marks omitted)), and Massachusetts v. EPA, 549 U.S. 497, 520 (2007) (maintaining that Massachusetts “is entitled to special solicitude in our standing analysis”)).

Update: After I started writing this post, the clerk’s office from the 5th Circuit asked the parties to address how Arizona State Legislature impacts standing. I guess we were on the same page.

This case is also helpful for West Virginia’s challenge to the Obamacare individual mandate.

Also, Jonathan Turley should file a 28(j), as this impacts the House of Representative’s standing claim. The Court makes clear that an entire body, rather than individual members, distinguishes the case from Raines v. Byrd:

Raines v. Byrd, 521 U. S. 811 (1997), does not aid AIRC’s argument that there is no standing here. In Raines, this Court held that six individual Members of Congress lacked standing to challenge the Line Item Veto Act. Id., at 813–814, 829–830 (holding specifically and only that “individual members of Congress [lack] Article III standing”). The Act, which gave the President author- ity to cancel certain spending and tax benefit measures after signing them into law, allegedly diluted the efficacy of the Congressmembers’ votes. Id., at 815–817. The “institutional injury” at issue, we reasoned, scarcely ze­ roed in on any individual Member. Id., at 821. “[W]idely dispersed,” the alleged injury “necessarily [impacted] all Members of Congress and both Houses . . . equally.” Id., at 829, 821. None of the plaintiffs, therefore, could tena­ bly claim a “personal stake” in the suit. Id., at 830.

In concluding that the individual Members lacked standing, the Court “attach[ed] some importance to the fact that [the Raines plaintiffs had] not been authorized to represent their respective Houses of Congress.” Id., at 829. “[I]ndeed,” the Court observed, “both houses actively oppose[d] their suit.” Ibid. Having failed to prevail in their own Houses, the suitors could not repair to the Judi­ ciary to complain. The Arizona Legislature, in contrast, is an institutional plaintiff asserting an institutional injury, and it commenced this action after authorizing votes in both of its chambers, App. 26–27, 46. That “different . . . circumstanc[e],” 521 U. S., at 830, was not sub judice inRaines.10


The Court analogizes the Arizona case to Coleman v. Miller–a very confusing case where the Kansas Senate was found to have standing to challenge the state Lieutenant Governor casting a tie-breaking vote to ratify the Child Labor Amendment.

Closer to the mark is this Court’s decision in Coleman v. Miller, 307 U. S. 433 (1939). There, plaintiffs were 20 (of 40) Kansas State Senators, whose votes “would have been sufficient to defeat [a] resolution ratifying [a] proposed [federal] constitutional amendment.” Id., at 446.11 We held they had standing to challenge, as impermissible under Article V of the Federal Constitution, the State Lieutenant Governor’s tie-breaking vote for the amend­ment. Ibid. Coleman, as we later explained in Raines, stood “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” 521 U. S., at 823.12

But in Footnote 12, the Court suggests there would be “separation-of-powers concerns” if Congress sued the President.

The case before us does not touch or concern the question whether Congress has standing to bring a suit against the President. There is no federal analogue to Arizona’s initiative power, and a suit between Congress and the President would raise separation-of-powers concerns absent here. The Court’s standing analysis, we have noted, has been “especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U. S. 811, 819–820 (1997).

The Court found that Proposition 106 “completely nullified” the vote by the Legislature:

Our conclusion that the Arizona Legis­ lature has standing fits that bill. Proposition 106, to- gether with the Arizona Constitution’s ban on efforts to un­ dermine the purposes of an initiative, see supra, at 11, would “completely nullif[y]” any vote by the Legislature, now or “in the future,” purporting to adopt a redistricting plan. Raines, 521 U. S., at 823–824.

RBG also replies to Justice Scalia’s point that Coleman was only a 4-4 “standoff.” (He made a similar point in Schuette last year that Footnote Four of Carolene Products only enjoyed four votes).

In an endeavor to wish away Coleman, JUSTICE SCALIA, in dissent, suggests the case may have been “a 4-to-4 standoff.” Post, at 5. He overlooks that Chief Justice Hughes’ opinion, announced by Justice Stone, was styled “Opinion of the Court.” 307 U. S., at 435. Describing Coleman, the Court wrote in Raines: “By a vote of 5–4, we held that [the 20 Kansas Senators who voted against ratification of a proposed federal constitutional amendment] had standing.” 521 U. S., at 822. For opinions recognizing the precedential weight of Coleman, see Baker v. Carr, 369 U. S. 186, 208 (1962); United States v. Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting) (slip op., at 4–5).

Justice Scalia’s dissent, joined by Justice Thomas would have tossed the case on standing.

I do not believe that the question the Court answers is properly before us. Disputes between governmental branches or departments regarding the allocation of politi- cal power do not in my view constitute “cases” or “contro- versies” committed to our resolution by Art. III, §2, of the Constitution.

That doctrine of standing, that jurisdictional limitation upon our powers, does not have as its purpose (as the majority assumes) merely to assure that we will decide disputes in concrete factual contexts that enable “realistic appreciation of the consequences of judicial action,” ante, at 14. To the contrary. “[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U. S. 737, 752 (1984). It keeps us minding our own business.

We consult history and judicial tradition to determine whether a given “‘disput[e is] appropriately resolved through the judicial process.’” Lujan v. Defenders of Wild- life, 504 U. S. 555, 560 (1992) (internal quotation marks omitted). What history and judicial tradition show is that courts do not resolve direct disputes between two political branches of the same government regarding their respec- tive powers. Nearly every separation-of-powers case presents questions like the ones in this case. But we have never passed on a separation-of-powers question raised directly by a governmental subunit’s complaint. We have always resolved those questions in the context of a private lawsuit in which the claim or defense depends on the constitutional validity of action by one of the governmen- tal subunits that has caused a private party concrete harm.


This is not helpful for the House of Representatives.

Especially this paragraph:

In Zivotofsky v. Kerry, ante, p. ___, the President could have sued for an injunction against Congress’s attempted “direct usurpa- tion” of his constitutionally-conferred authority to pro- nounce on foreign relations. Or in Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. ___ (2015), a Federal District Judge could have sought a declaratory judgment that a bankruptcy court’s adjudicating a Stern claim improperly usurped his constitutionally conferred authority to decide cases and controversies. Or in NLRB v. Noel Canning, 573 U. S. ___ (2014), the Senate could have sued the Pres- ident, claiming a direct usurpation of its prerogative to advise on and consent to Presidential appointments. Each of these cases involved the allocation of power to one or more branches of a government; and we surely would have dismissed suits arising in the hypothesized fashions.

Scalia’s discussion of Massachusetts v. Mellon does not bode well for Texas either:

In Massachusetts v. Mellon, 262 U. S. 447, 479–480 (1923), we refused to allow a State to pursue its claim that a conditional congressional appropriation “con- stitute[d] an effective means of inducing the States to yield a portion of their sovereign rights.” (And Mellon involved a contention that one government infringed upon another government’s power—far closer to the traditional party-versus-party lawsuit than is an intragovernmental dispute.) We put it plainly: “In the last analysis, the complaint of the plaintiff State is brought to the naked contention that Congress has usurped the reserved powers of the several States,” id., at 483—and because the State could not show a discrete harm except the alleged usurpa- tion of its powers, we refused to allow the State’s appeal.

I think Mellon can be distinguished, because Texas isn’t asserting standing based on the infringement of its sovereign power, but an injury that is cognizable in terms of driver’s license fees. But in any event, Scalia is not happy about a state suing the federal government for anything–this is consistent with his vote in Mass. v. EPA. (What is it with Massachusetts suing the federal government?).

Scalia would probably overturn Coleman, which stands out like a sore thumb:

But the reality is that the supposed holding of Coleman stands out like a sore thumb from the rest of our jurisprudence, which denies standing for intragovernmental disputes.

Coleman was a peculiar case that may well stand for nothing. The opinion discussing and finding standing, and going on to affirm the Kansas Supreme Court, was written by Chief Justice Hughes and announced by Justice Stone. Justice Frankfurter, joined by three other Justices, held there was no standing, and would have dismissed the petition (leaving the judgment of the Kansas Supreme Court in place). Justice Butler, joined by Justice McRey- nolds, dissented (neither joining Hughes’s opinion nor separately discussing standing) and would have reversed the Kansas Supreme Court.

That adds up to two votes to affirm on the merits, two to reverse on the merits (without discussing standing) and four to dismiss for lack of standing. Justice Stanley Reed, who was on the Court and apparently participated in the case, is not mentioned in any of the opinions recorded in the United States Reports. So, in order to find Coleman a binding precedent on standing, rather than a 4-to-4 stand- off, one must assume that Justice Reed voted with Hughes. There is some reason to make that assumption: The four Justices rejecting standing went on to discuss the merits, because “the ruling of the Court just announced removes from the case the question of petitioners’ standing to sue.” 307 U. S., at 456 (Black, J., concurring). But then again, if nine Justices participated, how could it be that on one of the two issues in the case the Court was “equally divided and therefore . . . expresse[d] no opinion”? Id., at 447.

A pretty shaky foundation for a significant precedential ruling. Besides that, the two dissenters’ mere assumption of standing—neither saying anything about the subject nor joining Hughes’s opinion on the point—produces (if you assume Reed joined Hughes) a majority for standing but no majority opinion explaining why. The peculiar decision in Coleman should be charitably ignored.

Scalia does not like standing here:

Quite to the contrary, I think they would be all the more averse to unprecedented judicial meddling by federal courts with the branches of their state governments.

Though it is noteworthy that neither Roberts nor Alito discussed standing.