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

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1 SCOTT A. KELLER Solicitor General (512) Mr. Lyle W. Cayce, Clerk U.S. Court of Appeals for the Fifth Circuit 600 S. Maestri Place New Orleans, Louisiana Re: No , Texas, et al. v. United States, et al. Dear Mr. Cayce: Pursuant to this Court s order, Plaintiffs respectfully submit this supplemental letter brief concerning Arizona State Legislature v. Arizona Independent Redistricting Commission, 2015 WL (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 , at *5. 2. Arizona State Legislature s 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 driver s-license programs. See Appellees (States) Br Plaintiffs also demonstrated a strong likelihood of success in

2 Page 2 showing standing based on healthcare, education, and law-enforcement costs directly caused by DAPA. See States Br 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 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 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 , at *3 (5th Cir. May 26, 2015). Arizona State Legislature just confirmed that an institutional plaintiff asserting an institutional injury has standing WL , 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 , 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 Int l, 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 , at *9 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

3 Page 3 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 , 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 , 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. 4. Arizona State Legislature confirms that States are entitled to special solicitude in [a court s] standing analysis. Ariz. State Leg., 2015 WL , 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] WL , 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

4 Page 4 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. 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 (district court s opinion); Amicus Br. of Prof. Ernest A. Young For this reason, States are accorded special solicitude in demonstrating their standing to sue the federal Executive. Ariz. State Leg., 2015 WL , 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. Raines s especially rigorous standard had no applicability in Arizona State Legislature because the Arizona Legislature s 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 , at *10 n.12. Just so in this

5 Page 5 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 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 WL , 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, (1992), and Maryland v. Louisiana, 451 U.S. 725, (1981)). In all events, even under the novel and incorrect view that any plaintiff s 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. * * *

6 Page 6 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 WL , 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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