State of Tenn. v. United States Dep't of State

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0164p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STATE OF TENNESSEE, by and through the Tennessee ┐

General Assembly, et al., │

Plaintiffs-Appellants, │

│ No. 18-5478

>

v. │

│

│

UNITED STATES DEPARTMENT OF STATE, et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 1:17-cv-01040—S. Thomas Anderson, District Judge.

Argued: March 19, 2019

Decided and Filed: July 24, 2019

Before: COLE, Chief Judge; and BOGGS, Circuit Judge.*

_________________

COUNSEL

ARGUED: John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, for Appellants.

Samantha L. Chaifetz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellees. ON BRIEF: Richard Thompson, B. Tyler Brooks, Kate Oliveri, THOMAS MORE

LAW CENTER, Ann Arbor, Michigan, for Appellants. Samantha L. Chaifetz, Alisa B. Klein,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Sarah

Grusin, NATIONAL HEALTH LAW PROGRAM, Carrboro, North Carolina, Cody Wofsy,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS

PROJECT, San Francisco, California, for Amici Curiae.

*After oral argument, Judge Julia Smith Gibbons was unavailable to participate in the panel’s decision.

Chief Judge Cole and Judge Boggs act as a quorum pursuant to 28 U.S.C. § 46(d).

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 2

_________________

OPINION

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BOGGS, Circuit Judge. This case presents the question of whether the Tennessee

General Assembly (“General Assembly”) has standing to file suit on its own behalf, as well as on

behalf of the State of Tennessee. The General Assembly alleged that the federal government

violated the Spending Clause and the Tenth Amendment to the United States Constitution

through enacting and implementing certain statutes that require states to provide Medicaid

coverage to eligible refugees. The district court dismissed the General Assembly’s complaint for

lack of standing. Tennessee v. U.S. Dep’t of State, 329 F. Supp. 3d 597, 616–17 (W.D. Tenn.

2018). Because the General Assembly has not alleged an injury that gives it standing, and

because the General Assembly has not established that it has the authority to bring suit on behalf

of Tennessee, we affirm the district court’s judgment.

STATUTORY BACKGROUND

Before turning to the parties’ arguments, we briefly discuss the statutory schemes that are

relevant to this case. In 1980, Congress amended the Immigration and Nationality Act by

passing the Refugee Act, Pub. L. No. 96-121, 94 Stat. 102 (1980) (codified in scattered sections

of 8 U.S.C.). The Refugee Act created the Office of Refugee Resettlement (“ORR”) within the

Department of Health and Human Services (“HHS”).1 8 U.S.C. § 1521(a). ORR administers the

Refugee Resettlement Program. See id. (b). ORR consults with state and local governments and

private nonprofit agencies concerning “the sponsorship process and the intended distribution

among the States and localities before their placement in those States and localities.” 8 U.S.C.

§ 1522(a)(2)(A). The parties do not dispute that states cannot prevent the federal government

from settling refugees within their borders. See Tennessee, 329 F. Supp. 3d at 607 (citing H.R.

1The Bureau of Population, Refugees, and Migration within the United States Department of State

determines whether refugees are eligible for resettlement within the United States. Exodus Refugee Immigration,

Inc. v. Pence, 165 F. Supp. 3d 718, 724–25 (S.D. Ind. 2016). This process can take eighteen to twenty-four months.

Id. at 725.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 3

Rep. No. 132, at 19 (1985)); see also Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902,

904 (7th Cir. 2016).

The Refugee Resettlement Program assists refugees in achieving economic self-

sufficiency in the United States through federal grants to provide employment training, English-

language education, and other skill development. 8 U.S.C. § 1522(a)(1)(A); Exodus Refugee

Immigration, 838 F.3d at 903; 45 C.F.R. § 400.11. States may choose to administer this

program. To participate, a state must submit a proposal for ORR’s approval, describing how the

state will “coordinate cash and medical assistance and other services to promote refugee

resettlement and economic self-sufficiency.” Tennessee, 329 F. Supp. 3d at 607; 8 U.S.C.

§ 1522(a)(6)(A)–(C); 45 C.F.R. § 400.4. If a state chooses not to participate, or withdraws from

participation, then the state does not receive or administer the grant funding. 45 C.F.R.

§ 400.301. ORR may then “authorize a replacement designee or designees to administer the

provision of assistance and services, as appropriate, to refugees in that State.” Id. (c); see also

8 U.S.C. § 1152(c)(1)(A), (e)(1); Exodus Refugee Immigration, 838 F.3d at 905; 60 Fed. Reg.

33584, 33588 (June 28, 1995). ORR funds thirteen such programs in twelve states. Tennessee,

329 F. Supp. 3d at 608.

The Refugee Act authorizes, but does not require, ORR to reimburse states, subject to

available appropriations, “for 100 per centum of the cash assistance and medical assistance

provided to any refugee” during the first three years of the refugee’s residence in the United

States. 8 U.S.C. § 1522(e)(1); see also Tennessee, 329 F. Supp. 3d at 607. “[B]y the early

1990s, ORR no longer reimbursed the states for the full cost of providing cash and medical

assistance to refugees due to an insufficiency of funds appropriated for that purpose.”

Tennessee, 329 F. Supp. 3d at 607. ORR amended the program regulations in light of the

“steady decline in Federal refugee funding for the State share of . . . Medicaid . . . due to

insufficient appropriated funds.” 60 Fed. Reg. 33584, 33588 (June 28, 1995).

Medicaid is a “cooperative federal-state public assistance program that makes federal

funds available to states electing to furnish medical services to certain impoverished

individuals.” Mowbray v. Koslowski, 914 F.2d 593, 595 (4th Cir. 1990). Medicaid assists states

in providing medical care to “pregnant women, children, needy families, the blind, the elderly,

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 4

and the disabled . . . .” Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 541 (2012).

Participation in Medicaid is voluntary, but to receive federal funding, states must have an

approved state Medicaid plan satisfying federal criteria that establish who is eligible for care, the

services provided, and the cost of services. Id. at 541–42; see also 42 U.S.C. § 1396a(10);

42 C.F.R. § 430.10. Tennessee has participated in Medicaid since 1968. Tennessee, 329 F.

Supp. 3d at 605.

A state must submit its Medicaid plan, or any proposed amendments, to the Centers for

Medicare & Medicaid Services (“CMS”) for approval. 42 C.F.R. § 430.12. Once the plan is

approved, the state receives reimbursement from the federal government for a percentage of the

costs of providing care to eligible individuals: the “Federal Medical Assistance Percentage”

(“FMAP”). West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 284 (4th Cir.

2002); see also 42 U.S.C. § 1396d(b). If a state plan is not in compliance with the Medicaid

Act’s requirements, “after reasonable notice and opportunity for hearing,” HHS may withhold

the state’s FMAP or limit the FMAP to the parts of the state plan that are not affected by

noncompliance. 42 U.S.C. § 1396c. The Medicaid Act provides for a system of administrative

and judicial review for HHS’s decisions concerning state plans and a determination to reduce or

withhold a state’s FMAP.2 See 42 U.S.C. § 1316. Medicaid spending accounts for a substantial

portion of the average state’s budget, and the FMAP covers “50 to 83 percent of those costs.”

NFIB, 567 U.S. at 581. In recent years, Tennessee’s annual FMAP has ranged from four to

seven billion dollars, which represents 17 to 21% of the state’s total budget for all purposes.

The original Medicaid Act “was . . . silent on the availability of Medicaid to aliens.”

Lewis v. Thompson, 252 F.3d 567, 571 (2d Cir. 2001). In 1971, the Supreme Court held in

2The General Assembly argues that it faces the potential consequence of a loss of its FMAP. CMS may

withhold payments to a state only after providing “reasonable notice and opportunity for a hearing,” if CMS finds

that the plan is no longer in compliance or that the administration of the plan fails to substantially comply with the

Medicaid Act. 42 U.S.C. § 1396c; 42 C.F.R. § 430.35(a). A hearing is “generally not called until a reasonable

effort has been made to resolve the issues through conferences and discussions.” 42 C.F.R. § 430.35(a). The Code

of Federal Regulations identifies the procedure for a hearing. See 42 C.F.R. §§ 430.60–104. CMS’s decision is

final agency action. 42 C.F.R. § 430.102(c). The decision must specify whether a state’s FMAP will be withheld

entirely or in part, as well as the effective date. 42 C.F.R. 430.104(a). CMS may still, however, consult with the

parties on the question of further payments. Id. (b). Federal funds cannot be withheld earlier than the date of the

decision, and no later than “the first day of the next calendar quarter.” Id. (c). CMS’s final determinations are

subject to judicial review by the United States Court of Appeals for the circuit in which the state is located.

42 U.S.C. § 1316(a)(3).

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 5

Graham v. Richardson, 403 U.S. 365, 376 (1971), that states violated the Equal Protection

Clause of the Fourteenth Amendment by denying public assistance to noncitizens on that basis,

or because the noncitizen had not resided in the United States for a certain number of years.

Following Graham, HHS proposed a rule to implement the decision that was also consistent with

recent amendments to the Social Security Act that denied Social Security benefits to noncitizens.

See 38 Fed. Reg. 16910, 16910–11 (June 27, 1973); see also Lewis, 252 F.3d at 571. The rule,

codified at the time at 45 C.F.R. § 248.50 (1974), required states that participated in Medicaid to

provide benefits to eligible noncitizens “lawfully admitted for permanent residence or otherwise

permanently residing in the United States under color of law[.]” 38 Fed. Reg. 30259, 30259

(Nov. 2, 1973). A noncitizen’s eligibility for Medicaid depended on whether the noncitizen fit

the criteria for coverage in the Medicaid Act.

In 1996, Congress passed the Personal Responsibility and Work Opportunity

Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2015 (1996). The Act restricts the

availability of public benefits for noncitizens to promote self-sufficiency as part of the United

States’ national immigration policy. See 8 U.S.C. § 1601(5)–(6). To that end, the Act provided

that “an alien who is not a qualified alien . . . is not eligible for any Federal public benefit[.]”

8 U.S.C. § 1611(a); see also Bruns v. Mayhew, 750 F.3d 61, 63–64 (1st Cir. 2014). “Qualified

alien” is defined at 8 U.S.C. § 1641(b)–(c), and includes, inter alia, “a refugee who is admitted

to the United States under section 207 of [the Immigration and Nationality] Act.” Id. (b)(3).

Most qualified aliens are subject to additional restrictions on federal program participation. See

8 U.S.C. §§ 1612(a)(1), 1613(a). Five years after entry into the United States, qualified aliens

may be able to participate in certain federal programs, if they are eligible, including Medicaid.

Tennessee, 329 F. Supp. 3d at 606. Congress identified some classes of qualified aliens, 3

including refugees, who may participate in identified federal programs, including Medicaid,

immediately upon admission to the United States, until seven years after the refugee was

admitted to the United States. 8 U.S.C. § 1612(a)(2)(A)(i).

3See 8 U.S.C. § 1612(a)(2)(A)(i)–(v), (B)–(D) (identifying qualified aliens, including refugees, who may

participate in certain federal programs).

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 6

Therefore, if a state participates in Medicaid, it “must determine a refugee applicant’s

eligibility for Medicaid as medically needy[,]” and provide assistance “to all refugees eligible

under its State plans.” 45 C.F.R. § 400.94(b)–(c). If the refugee is in one of the groups that must

be covered, see 8 U.S.C. § 1396a(10), then the refugee’s status as a noncitizen does not bar the

refugee from receiving Medicaid. See 8 U.S.C. § 1612(a)(2)(A)(i); 45 C.F.R. § 400.94(c). If a

refugee is not eligible for Medicaid under a state plan, then the refugee may be eligible for the

federally funded Refugee Medical Assistance Program. 45 C.F.R. § 400.94(d).

FACTUAL AND PROCEDURAL HISTORY

Tennessee withdrew from participation in the Refugee Resettlement Program in 2008.

Tennessee, 329 F. Supp. 3d at 608. ORR designated the Catholic Charities of Tennessee, and its

subsidiary the Tennessee Office for Refugees, to administer refugee services in Tennessee. Ibid.

The General Assembly asserts that, from the time of the state’s withdrawal until 2016, the

federal government resettled more than 13,000 refugees in Tennessee. Refugees who satisfy

eligibility criteria can enroll in TennCare, Tennessee’s Medicaid program. The General

Assembly states in its complaint that in 2015, it spent over $31 million dollars in state funds “to

support the federal refugee resettlement program through TennCare.”

In 2016, the General Assembly passed Senate Joint Resolution 467 (“SJR 467”),

directing the Tennessee Attorney General4 to “initiate or intervene” in a civil action on behalf of

Tennessee for alleged violations of the Tenth Amendment with respect to the operation and

implementation of the Refugee Resettlement Program. S. Res. 467, 109th Gen. Assembly, at

3 (Tenn. 2016). SJR 467 stated that if the Attorney General declined to file suit, then “the

Speaker of the Senate and the Speaker of the House of Representatives are authorized to employ

outside counsel to commence a civil action effectuating the purposes of this resolution.” Id. at 4.

The General Assembly sent SJR 467 to the Governor of Tennessee. He returned it without his

signature. The Governor explained in an accompanying statement that he “trust[ed] the Attorney

General to determine whether the state has a claim in this case or in any other,” and noted his

4The formal title of Tennessee’s Attorney General is “Attorney General and Reporter.” See Tennessee ex

rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 772 n.58 (Tenn. Ct. App. 2001).

This opinion uses a shortened version of the Attorney General’s title.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 7

“constitutional concerns about one branch of government telling another what to do.” The

General Assembly took no further legislative action on SJR 467.

The Attorney General did not file suit. In a letter to the General Assembly, he explained

that he thought that the Tenth Amendment theories “that underpin SJR 467 are unlikely to

provide a viable basis for legal action.” Letter from Herbert H. Slatery, III, Attorney General

and Reporter, Tennessee, to Tennessee Senate Chief Clerk Russell Humphrey and Tennessee

House of Representatives Chief Clerk Joe McCord, at 3 (July 5, 2016) (hereinafter “Slatery

Letter”). The Attorney General then, “to the extent allowed by Tennessee law delegate[d his]

constitutional . . . and statutory . . . authority to commence litigation on behalf of the State of

Tennessee to staff counsel for the General Assembly for the limited purpose of pursuing

litigation to address the issues raised in SJR 467 in the manner provided for by SJR 467.” Id. at

4.

The General Assembly, acting for itself and on behalf of Tennessee, along with two

members of the Tennessee General Assembly, Senator John Stevens and Representative Terri

Lynn Weaver, in their official and individual capacities, filed suit in the Western District of

Tennessee against the United States Department of State, HHS, ORR, and several federal

government officials in their official capacities (collectively “State Department”).5 It alleged

that, despite Tennessee’s withdrawal from the Refugee Resettlement Program, the federal

government “coerced” Tennessee to continue funding the program “by threatening the state with

the loss of federal Medicaid funding.” The General Assembly claimed that, because Tennessee

must enroll eligible refugees in TennCare, the state “is forced to expend substantial amounts of

state taxpayer money to fund the resettlement program” despite its withdrawal. It asserted that

42 U.S.C. § 1396c represents impermissible coercion, because if Tennessee does not enroll

eligible refugees in TennCare, Tennessee could lose of 20% of its state budget. 6 The General

5The General Assembly sued Secretary of State Michael Pompeo, Principal Deputy Assistant Secretary of

State for Population, Refugees, and Migration Carol Thompson O’Connell, Secretary of HHS Alex Azar II, and the

Director of the ORR, E. Scott Lloyd.

6Tennessee has not attempted to alter its state Medicaid plan. The General Assembly has not passed any

legislative measures that would bar refugees from receiving TennCare. See Tennessee v. U.S. Dep’t of State, 329 F.

Supp. 3d 597, 618 (W.D. Tenn. 2018). The complaint does not allege that CMS has threatened to remove

Tennessee’s FMAP, other than the fact that 42 U.S.C. § 1396c exists.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 8

Assembly sought a declaratory judgment that the State Department had violated the Spending

Clause and Tenth Amendment in its implementation of the Refugee Act. It also requested

injunctive relief prohibiting the federal government from settling refugees in Tennessee until the

United States paid for all resettlement costs, and to compel the State Department to comply with

the Spending Clause and the Tenth Amendment by “fund[ing] refugee resettlement from federal

dollars and without any involuntary contribution from the State of Tennessee[.]”

The State Department moved to dismiss for lack of subject-matter jurisdiction. It

asserted that the General Assembly and the individual legislators lacked Article III standing, and

challenged the General Assembly’s authority to bring suit on behalf of the state of Tennessee.

Tennessee, 329 F. Supp. 3d at 610. The State Department disputed that the case was ripe

because Tennessee had not amended its Medicaid plan, and so did not actually face the loss of its

FMAP. Id. at 617. The State Department also contended that 42 U.S.C. § 1316 of the Medicaid

Act precluded district-court review of the General Assembly’s claims. Tennessee, 329 F. Supp.

3d at 619. Finally, it also moved to dismiss for failure to state a claim upon which relief can be

granted under Fed. R. Civ. P. 12(b)(6), because the General Assembly had not shown that

Tennessee’s obligation to provide Medicaid to eligible refugees violated the Tenth Amendment

or that the possible loss of Tennessee’s FMAP for failure to comply was an unconstitutionally

coercive exercise of Spending Clause power. Tennessee, 329 F. Supp. 3d at 621. The district

court granted the State Department’s motions.7 Id. at 629. This appeal followed.

ANALYSIS

The General Assembly argues that the district court erred in its conclusion that it lacked

subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) when it ruled that: (1) no plaintiff had

standing; (2) the controversy was not ripe for review; and (3) 42 U.S.C. § 1316 precluded its

review. It also argues that the district court erred in granting the State Department’s motion to

7Three organizations that assist refugees, the Tennessee Immigrant and Refugee Rights Coalition, Bridge

Refugee Services Inc., and the Nashville International Center for Empowerment, moved to intervene. The district

court denied that motion as moot when it granted the State Department’s motion to dismiss. See Tennessee, 329 F.

Supp. 3d at 604. These organizations, as well as the National Health Law Program and the National Immigration

Law Center, have filed amicus briefs.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 9

dismiss for failure to state a claim upon which relief could be granted. The State Department

asks us to affirm the district court.

Standard of Review

We review the district court’s decision to dismiss for lack of subject-matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1) de novo. Cartwright v. Garner, 751 F.3d 752, 760 (6th Cir.

2014). We review the district court’s factual findings for clear error and its application of the

law to the facts de novo. Ibid. We also review a district court’s dismissal of a complaint under

Fed. R. Civ. P. 12(b)(6) de novo. Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 605

(6th Cir. 2005).

Standing

The first issue we must analyze is whether the General Assembly has standing. Article

III, § 2 of the Constitution provides that the judicial power of the United States “extends only to

‘Cases’ and ‘Controversies.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting

U.S. Const. Art. III, § 2). Standing “ensure[s] that federal courts do not exceed their authority”

and “limits the category of litigants empowered to maintain a lawsuit in federal court to seek

redress for a legal wrong.” Ibid. The “irreducible constitutional minimum of standing” requires

the plaintiff to show three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

[A] plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete

and particularized and (b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of the defendant; and

(3) it is likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).

When a case “is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’

each element.” Spokeo, 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

“[I]n all standing inquiries, the critical question is whether at least one petitioner has ‘alleged

such a personal stake in the outcome of the controversy as to warrant his invocation of federal-

court jurisdiction.’” Horne v. Flores, 557 U.S. 433, 445 (2009) (quoting Summers v. Earth

Island Inst., 555 U.S. 488, 493 (2009)) (emphasis in original). Standing is a jurisdictional

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 10

requirement. See Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912, 915 (6th Cir. 2002).

If no plaintiff has standing, then the court lacks subject-matter jurisdiction. See Lyshe v. Levy,

854 F. 3d 855, 857 (6th Cir. 2017). When a court lacks jurisdiction, it “cannot proceed at all in

any cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte

McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). Therefore, if the General Assembly lacks

standing (acting for itself or on behalf of the state), and the individual legislators lack standing,

we need not reach the other issues: ripeness, statutory preclusion, and failure to state a claim

upon which relief can be granted.

Legislative Standing: The General Assembly’s Standing to Sue on its own Behalf

Courts have grappled with the complicated question of when a legislative body, or a

group of legislators from that body, has standing to sue. Like all standing questions, that

analysis begins with the requirement of a concrete and particularized injury that is actual or

imminent. See Spokeo, 136 S. Ct. at 1548. An injury satisfies these criteria when the injury

affects the plaintiff in a personal and individual way, and actually exists, even if the injury is

intangible. Id. at 1548–49. A legislative body may, in some circumstances, sue as an

institutional plaintiff if it has suffered an institutional injury. See Ariz. State Legislature v. Ariz.

Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015). An institutional injury “constitutes

some injury to the power of the legislature as a whole rather than harm to an individual

legislator.” Kerr v. Hickenlooper, 824 F.3d 1207, 1214 (10th Cir. 2016). Such an injury is not

confined to a single legislator, or a small group, but affects each member of the body equally.

Ibid. Assessing whether a legislative body has suffered an institutional injury sufficient for

Article III standing turns on the facts and circumstances of the particular case.

Two Supreme Court cases illustrate when a portion of a legislative body may have

standing, see Coleman v. Miller, 307 U.S. 433 (1939),8 and when the entire legislative body has

8Chief Justice Hughes wrote “the Opinion of the Court.” Coleman v. Miller, 307 U.S. 433, 435 (1939).

Justices Black, Roberts, Frankfurter, and Douglas concurred in the judgment, although they did not think that the

petitioners had standing. See id. at 456 (Black, J., concurring); id. at 460 (opinion of Frankfurter, J.). Justices Butler

and McReynolds dissented on the merits. See id. at 470–74 (Butler, J., dissenting). In Raines v. Byrd, 521 U.S. 811,

822 n.5 (1997), the Supreme Court concluded that Chief Justice Hughes’s opinion on standing controlled because

Justices Butler and McReynolds must have joined the opinion on standing. Otherwise, the Court explained, Justice

Frankfurter would have written the opinion of the court because only two Justices joined Chief Justice Hughes’s

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 11

standing. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652

(2015). Coleman presented a challenging question concerning legislative standing, as well as the

Supreme Court’s jurisdiction. In 1937, the Kansas Senate voted for the second time on whether

to ratify the Child Labor Amendment to the U.S. Constitution.9 Coleman, 307 U.S. at 435–36.

The Kansas Senate tied 20-20, and the Lieutenant Governor, as the presiding officer, cast a tie-

breaking vote in favor of ratification. Twenty-one Kansas state senators sought a writ of

mandamus in the Supreme Court of Kansas challenging the Lieutenant Governor’s right to cast

the deciding vote, as well as whether the Child Labor Amendment could still be ratified. Id. at

436. The Supreme Court of Kansas denied the writ, and the Supreme Court of the United States

granted certiorari. Id. at 436–37. As a threshold matter, the Supreme Court considered whether

the senators had standing to seek review of the decision of the Supreme Court of Kansas.10 Id. at

437.

The Supreme Court observed that “the plaintiffs include twenty senators, whose votes

against ratification have been overridden and virtually held for naught although if they are right

in their contentions their votes would have been sufficient to defeat ratification.” Id. at 438. The

senators, the Court explained, had a “plain, direct and adequate interest in maintaining the

effectiveness of their votes.” Ibid. In support of this conclusion, the Court examined past cases

in which it had recognized that federal and state officials and administrative commissions had a

legitimate interest in resisting attempts to prevent enforcement of statutes that confer official

duties on the officials and commissions. Id. at 441–42. The state official did not need to have

suffered a personal injury because, if he had a duty to enforce the statute, then he had an interest

in a federal case that considered whether the statute was constitutional. See id. at 443–45. The

Court also pointed out that it had found standing when citizens challenged whether certain

opinion on the merits. Ibid. The Supreme Court has treated Chief Justice Hughes’s opinion as controlling in other

cases. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2665 & n.13 (2015)

(discussing Coleman in relation to legislative standing), but see id. at 2696–97 (Scalia, J., dissenting) (contending

that Coleman was “a peculiar case that may well stand for nothing”).

9The Kansas Senate had initially adopted a resolution rejecting the amendment in 1925. Coleman,

307 U.S. at 435.

10

The Supreme Court of Kansas had concluded that the senators had standing to sue because the Kansas

Senate had passed a resolution directing Kansas’s Attorney General to appear on behalf of the state, and Kansas

joined the case as a party defendant. Coleman, 307 U.S. at 437 & n.2.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 12

exercises of state legislative power were consistent with federal constitutional requirements. Id.

at 445–46. The Court concluded:

In the light of this course of decisions, we find no departure from principle in

recognizing in the instant case that at least the twenty senators whose votes, if

their contention were sustained, would have been sufficient to defeat the

resolution ratifying the proposed constitutional amendment, have an interest in the

controversy which, treated by the state court as a basis for entertaining and

deciding the federal questions, is sufficient to give the Court jurisdiction to review

that decision.

Id. at 446.

Coleman mingled its federal-question jurisdiction and Article III standing analyses. Even

so, subsequent cases examining Coleman have identified some at least one core principle

concerning legislative-body standing. Courts have concluded that, on the question of whether

members of a legislative body have standing, Coleman at most held 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.” Raines v. Byrd, 521 U.S. 811, 823 (1997) (footnote omitted).

See also Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 453–54 (6th Cir. 2017)

(“An apparent exception to the general rule against legislative standing arises when the

legislators are suing on a vote-nullification theory and allege that if their votes had been given

effect, those votes would have been sufficient to defeat or enact a specific legislative action.”);

Baird v. Norton, 266 F.3d 408, 412 (6th Cir. 2001) (holding that a member of the Michigan

House and a Michigan state senator did not have standing to challenge gaming compacts

approved by a concurrent-resolution procedure because neither plaintiff could show that his or

her individual vote could have defeated the compacts under another procedure).

The Supreme Court considered whether a legislative body could raise a nullification

claim in Arizona State Legislature. Arizona voters adopted Proposition 106, which amended the

Arizona Constitution by removing the Arizona Legislature’s redistricting authority and vesting it

in an independent commission. 135 S. Ct. at 2658. The Legislature sued, alleging that

Proposition 106 and the commission’s redistricting activities deprived the Legislature of its

constitutional authority over redistricting, in violation of the Elections Clause of the U.S.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 13

Constitution. Id. at 2658–59 (citing U.S. Const. art. I § 4, cl.1). The Supreme Court considered

whether the Legislature had alleged an injury that was sufficiently concrete to meet Article III’s

standing requirements. Id. at 2663.

The Court rejected the argument that, absent an attempt at redistricting, the Legislature

lacked standing. Id. at 2663–64. If the Legislature had to pass a redistricting plan and seek to

implement it, it would have to violate the Arizona Constitution (by passing an act that

superseded a proposition), and show that the Secretary of State, who could only constitutionally

implement the commission’s certified maps, would be likely to violate the Arizona Constitution

by implementing the Legislature’s map. Such a showing, the Court concluded, was unnecessary

to demonstrate an injury concrete enough for standing. Id. at 2664.

In assessing whether the Legislature had standing, the Court compared the Legislature’s

claims with the claims in Coleman and Raines. In Raines, the Supreme Court considered

whether six members of Congress had standing to challenge the constitutionality of the Line Item

Veto Act. 521 U.S. at 814. The Court observed that the members of Congress did not assert a

personal injury. Instead, they claimed that the Line Item Veto Act caused “a type of institutional

injury (the diminution of legislative power), which necessarily damages all Members of

Congress and both Houses of Congress equally.” Id. at 821. The nature of that injury did not

permit the members to claim a “personal stake” in the suit and the alleged injury was not

“sufficiently concrete” to establish Article III standing. Id. at 830.

The Supreme Court concluded that these facts distinguished the Arizona Legislature’s

claimed injury from the one in Raines. Ariz. State Legislature, 135 S. Ct. at 2664. By contrast,

the Arizona Legislature was “an institutional plaintiff asserting an institutional injury and it

commenced this action after authorizing votes in both of its chambers . . . .” Ibid. The Arizona

Legislature’s injury, the Court reasoned, was more similar to the “nullification” injury in

Coleman. Id. at 2665. Proposition 106, along with the Arizona Constitution’s bar on allowing

the Legislature to undermine the purpose of an initiative, “would ‘completely nullif[y]’ any vote

by the Legislature now or ‘in the future,’ purporting to adopt a redistricting plan.” Ibid. (quoting

Raines, 521 U.S. at 823–24). Accordingly, the Court concluded, there was a sufficiently

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 14

concrete injury to the Legislature’s interest in redistricting (a power the Legislature claimed

derived from the U.S. Constitution) that the Legislature had Article III standing. Id. at 2665–66.

The General Assembly argues that its circumstances are “virtually identical” to those in

Arizona State Legislature because a majority of the General Assembly passed SJR 467. It claims

that the definitive criteria for legislative standing “boils down to pure numbers.” Under the

General Assembly’s standing theory, “[l]egislators have standing to sue on behalf of the

legislative body where 51% of the members of the legislative body vote to authorize the

lawsuit.” It argues that it has sufficiently alleged an injury, “deprivation and nullification” of its

legislative powers, because its complaint alleged “that the federal refugee resettlement program

and the mandates to fund programs and healthcare for refugees through Medicaid completely

nullify the General Assembly’s votes to appropriate state funds as is its right and obligation

under the Tennessee Constitution.” The General Assembly emphasizes that “the underlying

cause of action itself—the Tenth Amendment to the United States Constitution—makes it clear

that Defendants are infringing on the State’s sovereignty and nullifying its powers.”

None of the cases the General Assembly relies on demonstrate that “pure numbers” or a

majority of votes on a resolution to file suit confers standing on an institutional body. A vote

tally is relevant in analyzing whether the legislators have a Coleman nullification claim, or if an

individual legislator had been designated as the body’s representative. See Kerr, 824 F.3d at

1215 (“In determining whether a party may rely on an institutional injury to demonstrate

standing, the [Supreme] Court has considered whether the plaintiffs represent their legislative

body as an institution.”). Raines “attach[ed] some importance” to the fact that the Senate and

House had not authorized any of the six plaintiffs to represent their Houses of Congress, and in

fact, Congress “actively oppose[d]” the suit.” 521 U.S. at 829; see also Ariz. State Legislature,

135 S. Ct. at 2664. Raines also noted that the six plaintiffs did not form a sufficient bloc to bar

the enactment of the Line Item Veto Act, unlike in Coleman. 521 U.S. at 822–24. Similarly,

Arizona State Legislature, 135 S. Ct. at 2664, observed that the Arizona Legislature had brought

suit as an institution after authorizing votes.

Raines and Arizona State Legislature are not just about numbers. What Raines

demonstrates is that individual legislator plaintiffs cannot bring suit for an alleged institutional

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 15

injury. 521 U.S. at 821. But an institutional body can bring suit for such an alleged injury. Ariz.

State Legislature, 135 S. Ct. at 2664. See also Kerr, 824 F.3d at 1214 (“Viewing [Raines,

Coleman, and Ariz. State Legislature] together, individual legislators may not support standing

by alleging only an institutional injury.”). SJR 467 lends support to the General Assembly’s

claim that it brings suit as an institutional body, as well as the individual legislators’ claims to

standing as the General Assembly’s authorized representatives. See United States v. AT&T, 551

F.2d 384, 391 (D.C. Cir. 1976) (noting House of Representatives resolution authorizing

intervention of congressman on behalf of a congressional subcommittee and the House of

Representatives). But SJR 467, by itself, is not sufficient to confer Article III standing. See Ariz.

State Legislature, 135 S. Ct. at 2664; Kerr, 824 F.3d at 1216. An institutional plaintiff must still

satisfy Article III’s standing requirements. To have standing, the General Assembly must have

alleged that it has suffered “an actual or imminent injury that is traceable to the defendant and

redressable by the court.” Crawford, 868 F.3d at 452.

To determine whether the General Assembly’s alleged injury satisfies that criteria, it is

helpful to delve further into what constitutes a concrete “institutional injury” for standing,

beyond a claim that an injury that is directed towards the legislative body and affects all

members equally. See Ariz. State Legislature, 135 S. Ct. at 2664; Raines, 521 U.S. at 821; Kerr,

824 F.3d at 1215. In both Coleman and Arizona State Legislature, the injury “reside[d] in the

disruption of the legislative process . . . .” U.S. House of Representatives v. Burwell, 130 F.

Supp. 3d 53, 67 (D.D.C. 2015). The plaintiffs in both Coleman and Arizona State Legislature

had alleged that an action at the state legislative level had interfered with their federal

constitutional prerogatives. Coleman is not precisely an “institutional injury” case—rather, it is

a claim by some legislators that state procedural irregularities undermined their duty under the

U.S. Constitution and nullified their votes. 307 U.S. at 438. Similarly, in Arizona State

Legislature, the Legislature argued that Proposition 106, was inconsistent with the Elections

Clause of the U.S. Constitution, which the Legislature claimed vested it with the responsibility

for redistricting. 135 S. Ct. at 2663.

Other cases finding that a legislative body alleged a concrete institutional injury, and so

had standing, similarly centered on a disruption to that body’s specific powers. In AT&T, the

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 16

United States Court of Appeals for the District of Columbia Circuit concluded that the House of

Representatives had standing to intervene in a suit that the Department of Justice had filed to

block AT&T from complying with a House subcommittee subpoena. 551 F.2d at 391. The court

held, after a brief analysis, that “the House as a whole has standing to assert its investigatory

power, and can designate a member to act on its behalf.” Ibid. In Burwell, the district court held

that the House of Representatives had alleged a concrete, particularized injury that satisfied

standing through its claim that the Executive Branch had violated the Constitution by drawing

funds from the Treasury without a valid appropriation. 130 F. Supp. 3d at 74. The district court

emphasized that circumventing the appropriations process deprived Congress “of its

constitutional role” and caused an injury “in a more particular and concrete way.” Id. at 75.

These cases demonstrate that interference with a legislative body’s specific powers, such as its

ability to subpoena witnesses, or a constitutionally assigned power, may create an injury that is

concrete enough for Article III standing. See Virginia House of Delegates v. Bethune-Hill,

139 S. Ct. 1945, 1955 n.6 (2019) (observing that the House has an “institutional interest in the

manner in which it goes about its business”) (emphasis in original). But that injury must be

concrete and particularized, see Spokeo, 136 S. Ct. at 1548, and in Coleman, Arizona State

Legislature, AT&T, and Burwell, the interference satisfied that criteria because it affected the

legislative body’s specific powers and either curtailed or threatened the exercise of those powers,

impacting the entire legislature.

Merely alleging an institutional injury is not enough. See Bethune-Hill, 139 S. Ct. at

1955 (party invoking federal-court jurisdiction “bears the burden of doing more than ‘simply

alleg[ing] a nonobvious harm’” (quoting Wittman v. Personhuballah, 136 S. Ct. 1732, 1737

(2016))). In Raines, the Supreme Court considered more than just numbers—it examined the

alleged injury. See 521 U.S. at 821–25. The members of Congress had argued that Coleman

applied because, under the Line Item Veto Act, their votes on future appropriations bills would

be less effective. Id. at 825. Before the Act, the members argued, if they passed an

appropriations bill, the bill would become law, or it would not. But after the Line Item Veto Act,

the members argued, the bill could become law—and the President could cancel portions of the

bill. Ibid. Raines cast doubt on whether this alleged injury itself was concrete enough to confer

standing. See id. at 829 (“[T]he institutional injury they allege is wholly abstract and widely

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 17

dispersed . . . .”). The Court concluded that this did not represent “vote nullification” as in

Coleman, but rather a complaint about an “abstract dilution of legislative power.” Id. at 826.

The District of Columbia Circuit considered a problem similar to the one before this

court, in Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999). The Alaska

Legislative Council, composed of certain members of the Alaska Legislature, and other members

of the Legislature sued the Secretary of the Interior, alleging that federal management of federal

public lands in Alaska under the Land Conservation Act infringed on Alaska’s authority in

violation of the Tenth Amendment. Id. at 1335. The Council alleged that because the Alaska

Constitution conferred an affirmative duty on the state’s legislators to legislate and manage state

natural resources, the federal statute interfered with those duties and “nullified their legislative

prerogatives regarding fish and wildlife management.” Id. at 1337. The court rejected the

individual legislators’ claims to standing because an assertion that federal law blocked the

Alaska Legislature from controlling hunting and fishing on federal lands alleged a loss of

political power that was attributable to the Legislature as a whole. Id. at 1338. But, the court

observed, there was not the “slightest suggestion” that the Lands Conservation Act had overruled

or nullified any “specific act or regulation of the Alaska Legislature . . . .” Ibid. The court

acknowledged that the Council could sue in the name of the Legislature under Alaska law, but

held that the Council’s claimed injury failed. The Council’s complaints were identical to those

of the individual legislators. The alleged injury, that federal law interfered with the state’s

authority to manage its fish and wildlife, was an injury the state purportedly suffered. Ibid. If

the Act “diminishe[d] the State’s authority, it injures state sovereignty, not legislative

sovereignty.” Id. at 1338–39 (emphasis added).

In our case, one of the General Assembly’s claimed injuries is an alleged injury to the

state—and not the General Assembly. It asserts that the State Department is “infringing on the

State’s sovereignty and nullifying its powers.” This claim, that the federal government is

commandeering state funds to support the Refugee Resettlement Program in violation of the

Tenth Amendment through a statute that permits eligible refugees to enroll in Medicaid, is, like

the injury described in Alaska Legislative Council, an alleged injury to the state, not the

legislature. See id. at 1338–39. This is not an injury that confers standing on the General

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 18

Assembly. See id. at 1339 (“[T]he Legislature suffers no separate, identifiable, judicially

cognizable injury that entitles it to sue on its own behalf.”).

The General Assembly argues that its votes to appropriate state funds have been

“completely nullif[ied]” through the obligation to provide Medicaid to eligible refugees. The

Tennessee Constitution vests the General Assembly with Tennessee’s legislative authority and

the power to appropriate funds. Tenn. Const. art. 2, §§ 3, 24. But the General Assembly has not

alleged that it cannot pass appropriations bills,11 and so its insistence that its circumstances are

identical to those in Arizona State Legislature is misplaced. The Arizona Legislature could not

take any redistricting action without violating the Arizona Constitution—Proposition 106

removed the redistricting power—and so made the injury concrete. Ariz. State Legislature,

135 S. Ct. at 2663. The General Assembly, however, can pass appropriations bills, which can

allocate or not allocate funds as it wishes. But, because Tennessee voluntarily participates in

Medicaid, and is required, as a condition of receiving federal funding, to cover individuals who

satisfy the eligibility criteria (including refugees), the General Assembly has appropriated funds

for the state share of Medicaid. The General Assembly’s objection arises from 8 U.S.C. § 1612,

which permits refugees to enroll in Medicaid if they satisfy the other criteria for eligibility.

This claimed injury appears to derive, if anywhere, from the alleged injury to

Tennessee’s sovereignty. See Alaska Legislative Council, 181 F.3d at 1338–39. The impact on

the General Assembly’s obligation to appropriate funding is more akin to the alleged injury in

11At oral argument, the General Assembly fleshed out its standing argument by asserting that the injury

arises from the General Assembly’s inability to balance the state budget because, as refugees are settled in

Tennessee, the federal government can commandeer state funds by placing more refugees in Tennessee and, as some

of those refugees might be eligible for Medicaid, Tennessee would have to spend money. This, the General

Assembly asserts, forces Tennessee to disturb its budget and violate its own constitution. The General Assembly

raised this concern in the context of its complaint that Tennessee “is not consulted or informed of the number of

refugees that will be resettled within its borders . . . .” The argument about consultation (or the General Assembly’s

clarification about balanced budget problems) was not raised substantially in its briefs. The General Assembly’s

complaint does not allege that refugee placements have caused, or threaten to cause, its budget to become

unbalanced. That something could happen does not satisfy the requirement of imminence. See Crawford v. U.S.

Dep’t of Treasury, 868 F.3d 438, 454–55 (6th Cir. 2017). Further, 8 U.S.C. § 1522(a)(2) provides guidelines to

ensure that the General Assembly’s hypothetical, that the federal government might place 10,000 refugees in one

state in the last two weeks of the fiscal year could not happen. Given that from 2008 to 2016, the federal

government has settled (according to the General Assembly) a total of 13,000 refugees in the state, we do not

conclude that this hypothetical set of circumstances represents a threatened injury that is “real, immediate, and

direct.” Davis v. FEC, 554 U.S. 724, 734 (2008).

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 19

Raines, of an abstract “loss of political power.” See 521 U.S. at 821. The General Assembly has

not identified an injury that it has suffered, such as disruption of the legislative process, a

usurpation of its authority, or nullification of anything it has done, unlike in Coleman, Arizona

State Legislature, or Burwell. The district court did not err when it concluded that the General

Assembly lacked Article III standing. Its alleged injury simply does not satisfy the first element

of standing. See Spokeo, 136 S. Ct. at 1548; Raines, 521 U.S. at 826. We do not address

whether a suit brought by a different party resting upon an alleged injury to Tennessee’s state

sovereignty would satisfy Article III standing.

The Individual Legislators’ Standing

Having concluded that the General Assembly lacks standing to sue on its own behalf, we

turn to whether the individual legislators have standing. Senator Stevens and Representative

Weaver filed suit in both their individual and official capacities. Before the district court, they

argued that they had official-capacity standing, rather than alleging that they had suffered a

personal injury that would provide them with individual-capacity standing. See Tennessee,

329 F. Supp. 3d at 612. Before this court, their primary argument is that, because the General

Assembly has standing, that body may designate Senator Stevens and Representative Weaver to

act on its behalf.

An individual legislator, or group of legislators, do not have Article III standing based on

an allegation of an institutional injury, or a complaint about a dilution of legislative power

because “[a]n individual legislator cannot ‘tenably claim a personal stake’ in a suit based on such

an institutional injury.” Kerr, 824 F.3d at 1214 (quoting Ariz. State Legislature, 135 S. Ct. at

2664); see also Crawford, 868 F.3d at 460; Baird, 266 F.3d at 412–13; Alaska Legislative

Council, 818 F.3d at 1337–38. An individual legislator may, however, have standing as a

representative of the legislative body. See Kerr, 824 F.3d at 1215–16 (explaining that an

individual legislator may represent the body as an institution upon authorization); see also

Karcher v. May, 484 U.S. 72, 81–82 (1987) (legislators intervened as representatives of the

legislature); AT&T, 551 F.2d at 391 (House of Representatives designated member as official

representative). But the legislative body must have standing to sue. See Karcher, 484 U.S. at

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 20

82. Because the General Assembly lacks standing, we affirm the district court’s conclusion that

Senator Stevens and Representative Weaver lack standing.

The General Assembly’s Standing to Sue on Behalf of the State of Tennessee

Even though we affirm the district court’s conclusion that the General Assembly lacks

standing to sue on its own behalf, we must consider whether the General Assembly has standing

to sue on behalf of Tennessee. The General Assembly argues that the Tennessee Constitution

does not expressly provide that only the Attorney General has the exclusive power to litigate in

the name of the state. It insists that, because the alleged injury to Tennessee’s sovereignty

primarily implicates legislative powers, it is the appropriate party to file suit, and Tennessee’s

separation-of-powers doctrine is flexible enough to permit the General Assembly to do so. The

General Assembly also argues that SJR 467 and the Attorney General’s subsequent delegation in

the Slatery Letter permit it to bring suit on behalf of Tennessee.

A state may designate an agent to represent its interests in court. This is most commonly

the state’s Attorney General. See Hollingsworth v. Perry, 570 U.S. 693, 710 (2013). State law

may, however, “provide for other officials to speak for the State in federal court . . . .” Ibid. For

example, in Karcher, 484 U.S. at 82, two members of the New Jersey Legislature could represent

New Jersey’s interests in their official capacity under New Jersey law. In assessing whether the

General Assembly has the authority to represent Tennessee in federal court, we must examine

Tennessee law. See Bethune-Hill, 139 S. Ct. at 1951–52 (examining Virginia law to determine if

the Virginia House of Delegates could litigate on behalf of the state); Hollingsworth, 570 U.S. at

712–13 (examining California law); Arizonans for Official English v. Arizona, 520 U.S. 43, 65

(1997) (examining Arizona law to determine if initiative sponsors can defend constitutionality of

initiatives).

The Tennessee Attorney General is “the chief executive officer of the Legal Department

of state government.” Tennessee ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White

Eagle, 63 S.W.3d 734, 772 (Tenn. Ct. App. 2001); see also Tenn. Code Ann. § 4-3-111(1). The

Attorney General is a constitutional officer appointed by the justices of the Tennessee Supreme

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 21

Court.12 Tenn. Const. art. VI, § 5. This role carries “extensive statutory power and the broad

common-law powers of the office except where these powers have been limited by statute.”

Medicine Bird Black Bear White Eagle, 63 S.W.3d at 772; see also Tennessee v. Chastain,

871 S.W.2d 661, 664 (Tenn. 1994); Tennessee v. Heath, 806 S.W.2d 535, 537 (Tenn. Ct. App.

1990). Tennessee courts have given a broad construction to the Attorney General’s statutory

authority. See Heath, 806 S.W.2d at 537. They also are reluctant to authorize interference with

the Attorney General’s obligations. See Medicine Bird Black Bear White Eagle, 63 S.W.3d at

775 (concluding that courts do not have the power to appoint lawyers to represent officers and

agencies of the state government “[i]n light of the constitutional stature and statutory duties of

the Attorney General”).

Tennessee law provides that the Attorney General has the duty to try or direct “all civil

litigated matters and administrative proceedings in which the state or any officer, department,

agency, board, commission or instrumentality of the state may be interested[.]” Tenn. Code

Ann. § 8-6-109(b)(1); see also Medicine Bird Black Bear White Eagle, 63 S.W.3d at 772. The

Attorney General has the exclusive authority “to attend to all business of the state” in both

criminal and civil matters in Tennessee’s appellate courts. Tenn. Code Ann. § 8-6-109(b)(2);

Tennessee v. Potter, 61 S.W.3d 348, 351 (Tenn. Crim. App. 2001). The Attorney General’s

exclusive authority also extends to cases in federal court.

The attorney general and reporter shall attend in person, or by assistant, and

prosecute or defend, as the case may be, any and all suits, civil or criminal in the

[S]upreme [C]ourt of the United States, in the United States court of appeals for

the judicial circuit of the United States comprising the state of Tennessee, or in

any of the district courts of the United States held in the state of Tennessee, in

which suit or suits the state may be a party, or in which the state has or may have

interests of a pecuniary nature.

Tenn. Code Ann. § 8-6-110 (emphases added). In interpreting statutory language, Tennessee

courts look to the “natural and ordinary meaning” of statutory language in the context of the

entire statute and interprets the statute to effectuate the legislative intent. Potter, 61 S.W.3d at

350. Tennessee courts have concluded that similar language in other statutes created a duty upon

12The Tennessee Attorney General “became a constitutional officer with the adoption of the 1853

amendments to the Constitution of 1835.” Medicine Bird Black Bear White Eagle, 63 S.W.3d at 772.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 22

state officials. See Dobbins v. Crowell, 577 S.W.2d 190, 192–93 (Tenn. 1979) (concluding that

statutory language vested duty and authority to enforce solely in the Attorney General); Potter,

61 S.W.3d at 350–51 (citing Tenn. Code Ann. § 8-7-103, which states that district attorneys

general “shall prosecute” and concluding that this “place[s] a duty upon the district attorney

general”). It appears that Tennessee has selected the Attorney General as the exclusive

representative of its interests in federal court. See Tenn. Code Ann. § 8-6-110.

The General Assembly contends that, should we hold that it lacks the authority to sue in

the name of the state, we would effectively give the Attorney General a veto over the General

Assembly’s powers to litigate. The difficulty with this argument is that the General Assembly

has not identified any Tennessee authority granting it the power to initiate a case on behalf of the

state. Tenn. Code Ann. § 8-6-109, which sets forth the duties of the Attorney General, does

permit the Attorney General to “exercise discretion to defend the constitutionality and validity of

all private acts and general laws of local application enacted by the general assembly and of

administrative rules or regulations of this state.” Id. (b)(10). If the Attorney General chooses not

to defend a law, then he must certify that decision to the Speaker of each House of the General

Assembly. Ibid. Upon such certification, the “speakers, acting jointly, may employ legal

counsel to defend the constitutionality of such law.” Id. (c). But, as the district court observed,

this statute is not applicable because the Attorney General chose not to file suit against the

federal government, rather than choosing not to defend the constitutionality of some law that the

General Assembly enacted. Tennessee, 329 F. Supp. 3d at 616. The General Assembly’s

argument, that affirming the district court would nullify Tenn. Code Ann. § 8-6-109(c) and

similar statutes in other jurisdictions incorrectly assumes that a suit to defend the

constitutionality of state law is the same as the authority to initiate a suit to challenge federal

law. We note that Tennessee has not passed any substantive law that would affect the refugee

Medicaid controversy.

Finally, we observe that, even when litigation implicates the General Assembly’s

constitutionally granted power to raise and spend funds, the General Assembly still does not

have the authority to bring suit in the name of the state. See Tenn. Code Ann. § 8-6-109(e). The

Attorney General is required to notify the General Assembly when the state is a party in state or

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 23

federal court and the litigation may raise issues of potentially insufficient funding or might result

in increased state expenditures. Id. (b)(11)–(12), (d). In such a case, the Speakers of the General

Assembly may employ legal counsel to offer advice, “provided[] that the attorney general and

reporter shall remain the state’s sole representative in federal and state court proceedings.” Id.

(e). Tennessee has designated an agent to represent its interests in federal court—and that agent

is not the General Assembly. See Tenn. Code Ann. § 8-6-110; Bethune-Hill, 139 S. Ct. at 1952

(“[T]he House’s argument that it has authority to represent the State’s interests is foreclosed by

the State’s contrary decision.”).

The General Assembly also relies on SJR 467 and the Slatery Letter to support its

argument that has authority to bring suit on behalf of the State. In the Slatery Letter, the

Attorney General declined to file suit, and then stated that, “to the extent allowed by Tennessee

law,” he delegated his constitutional and statutory authority “to commence litigation on behalf of

the State of Tennessee to staff counsel for the General Assembly for the limited purpose of

pursuing litigation to address the issues raised in SJR 467 in the manner provided for by SJR

467.” Slatery Letter, at 4. He cited Tenn. Code Ann. § 8-6-302 to support this delegation. Ibid.

The Attorney General may delegate his statutory and constitutional authority only if

authorized by statute or the Tennessee Constitution. See Tenn. Const. art. II, § 2 (“No person or

persons belonging to one of these departments shall exercise any of the powers properly

belonging to either of the others, except in the cases herein directed or permitted.”); Medicine

Bird Black Bear White Eagle, 63 S.W.3d at 772. There does not appear to be any constitutional

provision permitting this delegation.13 Tenn. Code Ann. § 8-6-302 provides that the Attorney

General, with “the concurrence of the head of the executive agency involved, may permit, by

express written authorization,” staff attorneys of “various departments, agencies, boards,

commissions or instrumentalities of the state to appear and represent the state” in a case “under

13The General Assembly contends that, as the injury to the state it alleges primarily implicates legislative

powers, it is the proper party to file suit in the name of the state. The sole support it offers for this proposition is

Tenn. Const. art. II, § 3, which vests the General Assembly with legislative authority. The legislative power

encompasses the authority to make and repeal laws. See Tennessee v. Brackett, 869 S.W.2d 936, 939 (Tenn. Crim.

App. 1993). Executive power concerns itself with the administration and enforcement of the law, and the judicial

power centers on the authority to interpret and apply the law. Ibid. The Tennessee Constitution forbids one branch

of government from taking on the duties of another branch without constitutional authorization. Tenn. Const. art. II,

§ 2. We do not find the General Assembly’s argument on this point persuasive.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 24

the direction and control of the attorney general and reporter.” This statute does not appear to

support the Attorney General’s purported delegation for two reasons. First, the preceding code

section, Tenn. Code Ann. § 8-6-301(c), expressly states that the Attorney General “shall not”

represent the Office of Legal Services for the General Assembly14 “before the [G]eneral

[A]ssembly or any committee thereof, nor shall direct or supervise such office or attorneys

employed by such office.” Therefore, Tenn. Code Ann. § 8-6-302 cannot apply to the General

Assembly’s staff attorneys because they cannot operate under the Attorney General’s direction.

See Tennessee v. Allman, 68 S.W.2d 478, 479 (Tenn. 1934) (“It is, of course, well settled that

statutes forming a system or scheme should be construed so as to make that scheme consistent in

all its parts.”).

Second, the statute only applies to executive agencies. See Tenn. Code Ann. § 8-6-302

(requiring “the concurrence of the head of the executive agency involved” before the staff

attorney may “appear and represent the state”). The preceding sections, Tenn. Code Ann. § 8-6-

301(a)–(b), emphasize the Attorney General’s authority over executive agencies, and forbid

these agencies from initiating civil proceedings, except through the Attorney General. Id. (b).

The General Assembly argues that it would be “inappropriate, as a matter of federalism, for a

federal court to assume that the State’s Attorney General made such a delegation if he could not

lawfully do so.” But the statute the Attorney General relied upon to support his delegation is, by

its own terms, inapplicable to the present circumstances, and the General Assembly has not

identified any other statutory or constitutional provision that would permit the Attorney General

to do so—instead the General Assembly pins its hopes on SJR 467.

The State Department argues that, as “a resolution is not law and cannot amend a

statute,” SJR 467 did not create a new statutory authorization permitting the General

Assembly to initiate an action on behalf of Tennessee in federal court, or amend Tenn. Code

Ann. § 8-6-110, which currently identifies the Attorney General as the state agent with the

exclusive authority to do so. In Vertrees v. State Bd. of Elections, 214 S.W. 737, 742 (Tenn.

14The Office of Legal Services for the General Assembly has a number of statutory duties, but none of

them include filing suit on behalf of the state. See Tenn. Code Ann. § 3-12-101 (listing duties of the Office of Legal

Services). The General Assembly has not argued that Tennessee law authorizes the Office of Legal Services to

undertake this action on behalf of the state.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 25

1919), the Tennessee Supreme Court considered, among other issues related to women’s partial

suffrage in Tennessee, whether elections officers had the power to provide a separate ballot box

for women’s votes. The court concluded that, as a statute authorized the elections officers to

provide a ballot box, it implied the power to provide other boxes, if it was necessary for a fair

election. The court also noted a resolution passed by the General Assembly that stated that

elections officers could provide separate ballot boxes. Ibid. The court explained that such a

resolution “was not effective to confer any additional power on our election officers, or to amend

any existing law.” Ibid. Instead, it served as “an expression of the opinion of the Legislature

and as an expression of legislative advice.” Ibid. The General Assembly, which has the burden

of establishing standing, see Spokeo, 136 S. Ct. at 1547, has not offered any Tennessee precedent

demonstrating that a resolution is effective to alter existing statutory schemes.15 While the

General Assembly may have the authority to sue in its own name in federal court to vindicate an

injury to its own rights, provided it can satisfy the essential jurisdictional requirements, we

conclude that SJR 467 did not amend the Tennessee law that provides that the Attorney General

has the exclusive responsibility to litigate on behalf of the state in federal court. See Tenn. Code

Ann. § 8-6-110.

15There is some dispute over whether SJR 467 was even validly enacted. The General Assembly maintains

that, as SJR 467 “was passed by majorities in each house of the General Assembly and returned by Governor

Haslam without a veto,” it became “effective pursuant to Section 18 of Article III of the Tennessee Constitution.”

The State Department disagrees. It points out that the Governor did not sign SJR 467, and included a statement

describing why he chose not to sign the resolution, including that he had “constitutional concerns about one branch

of government telling another what to do.”

The Tennessee Constitution provides that bills and joint resolutions that pass the General Assembly must

be presented to the Governor for his signature. Tenn. Const. art. III, § 18. If the Governor refuses to sign a bill or

joint resolution and wishes to veto it, he must return the document to the General Assembly with his written

objections within ten calendar days, not counting Sunday, or it becomes law without his signature. Ibid. If he

returns the resolution with objections, “before it shall take effect [the resolution] shall be repassed by a majority of

all the members elected to both houses in the manner and according to the rules prescribed in case of a bill.” Ibid.

The General Assembly sent SJR 467 to the Governor on May 9, 2016. He returned it without a signature and with

objections on May 20, 2016. See Tenn. Legislative Record, 109th Gen. Assembly, at 16–17 (Nov. 2016).

Excluding the Sunday, this return appears to be timely. The General Assembly never repassed SJR 467. In Johnson

City v. Tennessee Eastern Electric Co., 182 S.W. 587, 590 (Tenn. 1916), the Tennessee Supreme Court concluded

that it is “[b]eyond question a return made by the Governor of a bill with his objections thereto in writing to the

committee on enrolled bills of the house of origin, or to any member thereof, would be a good return of the bill and

objections within the meaning of the Constitution.” We do not need to address this issue because the Attorney

General has the sole authority to litigate in federal court on behalf of the state, Tenn. Code Ann. § 8-6-110, and there

does not appear to be any precedent to support his delegation to the General Assembly. Further, Vertrees v. State

Board of Elections, 214 S.W. 737, 742 (Tenn. 1919), undercuts the General Assembly’s argument that SJR 467 has

altered Tennessee statutory or constitutional law in a way that would permit it to sue.

No. 18-5478 State of Tenn., et al. v. United States Dep’t of State, et al. Page 26

Because the General Assembly has not established that it has standing, there is no

subject-matter jurisdiction. See Spokeo, 136 S. Ct. at 1547; Steel Co., 523 U.S. at 94.

“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining

to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle,

74 U.S. (7 Wall.) 506, 514 (1868). Accordingly, we do not reach the questions of ripeness,

statutory preclusion, or whether the General Assembly stated a claim upon which relief could be

granted. See Coal Operators & Assocs., Inc., 291 F.3d at 915.

The judgment of the district court dismissing the case for lack of standing is AFFIRMED.