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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)).

Earlier this week I blogged about Ted Cruz’s experience watching porn with Chief Justice Rehnquist and Justice O’Connor. I’ve now bought a copy of his book, and will highlight some stories salient to legal circles–mostly about his time at HLS and SCOTUS. Long post after the jump.

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From Kedar Bhatia’s ever-useful StatPack, we see that this year, there were eight 5-4 decisions where AMK voted with the liberals, and only five where AMK voted with the conservatives. In Walker, Justice Thomas voted with the four liberals. In Williams-Yulee, CJ Roberts joined Ginsburg, Breyer, Sotomayor, and Kagan. So there were 10 cases where four liberals were joined by one conservative. But the only case where four conservatives were joined by one liberal was Breyer joining in Armstrong. But even there, Breyer only concurred in judgment with Justice Scalia’s opinion, which fractured significantly. Adam Liptak discusses the “discipline” of the liberals in his insightful end-of-year piece.

Johnson v. U.S. (which I am only now getting a chance to read) finds the “residual” clause of the Armed Career Criminal Act was void for vagueness, and violated the Due Process Clause of the 5th Amendment. Justice Thomas dissented, and argued that the void for vagueness doctrine was akin to substantive due process, and needs to be reconsidered as a matter of original meaning. It is well worth reading.

But buried in a footnote was a citation to his join dissent in NFIB v. Sebelius.

By “penal,” I mean laws “authoriz[ing] criminal punishment” as well as those “authorizing fines or forfeitures . . . [that] are enforced through civil rather than criminal process.” Cf. C. Nelson, Statutory Interpreta- tion 108 (2011) (discussing definition of “penal” for purposes of rule of lenity). A law requiring termination of employment from public insti- tutions, for instance, is not penal. See Keyishian, 385 U. S., at 597– 604. Nor is a law creating an “obligation to pay taxes.” Milwaukee County v. M. E. White Co., 296 U. S. 268, 271 (1935). Conversely, a law imposing a monetary exaction as a punishment for noncompliance with a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___–___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26).

The Chief cited the joint dissent in King v. Burwell as well, in case you missed that too:

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

In any event, Thomas views the void for vagueness doctrine as a species of substantive due process, which he abjured in McDonald v. Chicago.

That we have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, 19 How. 393, 450–452 (1857) (stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfun- damental rights that do not”). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels.

In what also may be a first, Justice Thomas notes that the first draft in Roe was premised on a vagueness, not privacy rationale:

In more recent times, the Court’s substantive due pro- cess jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly signifi- cant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U. S. 113 (1973), on the theory that laws pro- hibiting all abortions save for those done “for the purpose of saving the life of the mother” forced abortionists to guess when this exception would apply on penalty of con- viction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116–118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See 410 U. S., at 164.

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).

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