Amicus Curiae Brief — Joseph R. Biden, President of the United States, et al., Petitioners v. Nebraska, et al.

No. 22-506

_________________________________________________

In the Supreme Court of the United States

__________________________________________________________________________________

JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

v.

STATE OF NEBRASKA, ET AL.,

Respondents.

__________________________________________________________________________________

On Writ of Certiorari Before Judgment to the United

States Court of Appeals for the Eighth Circuit

__________________________________________________________________________________

Brief of Amici Curiae States of Utah, Ohio, and

15 Other States in

Support of Respondents

____________________________________________________________________________________

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS

Ohio Solicitor General

SYLVIA MAY MAILMAN

Deputy Solicitor General

30 E. Broad St., 17th Fl.

Columbus, Ohio 43215

Telephone: (614) 466-8980

Email:

benjamin.flowers@ohioago.gov

SEAN D. REYES

Utah Attorney General

MELISSA HOLYOAK

Utah Solicitor General

Counsel of Record

350 N. State Street, Suite 230

P.O. Box 142320

Salt Lake City, UT 84114

Telephone: (801) 538-9600

Email:

melissaholyoak@agutah.gov

Counsel for Amici Curiae

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................ii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 5

I. Harms to MOHELA are harms to

Missouri. ........................................................... 5

II. The Department and its supporting amici

distort the nature of Article III’s standing

inquiry. ........................................................... 13

CONCLUSION.......................................................... 18

ADDITIONAL COUNSEL ........................................ 20

ii

TABLE OF AUTHORITIES

Federal Cases

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 14

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,

Barez,

458 U.S. 592 (1982) ............................................... 14

Arkansas v. Texas,

346 U.S. 368 (1953) ..................................... 3, 10, 11

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ........................................... 2, 17

Dep’t of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43 (2015) ........................................... 3, 6, 9

Erickson v. United States,

264 U.S. 246 (1924) ........................................... 3, 10

First National City Bank v. Banco Para el

Comercio Exterior de Cuba,

462 U.S. 611 (1983) ............................................... 11

Hopkins Fed. Sav. & Loan Ass’n v. Cleary,

296 U.S. 315, 340 (1935) ....................................... 10

League of Women Voters v. Newby,

838 F.3d 1 (D.C. Cir. 2016) ................................... 13

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ................................... 3, 5, 6, 12

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ............................................... 17

Marbury v. Madison,

1 Cranch 137 (1803) .............................................. 15

iii

Massachusetts v. E.P.A.,

549 U.S. 497 (2007) ........................................... 4, 13

NFIB v. OSHA,

142 S. Ct. 661 (2022) ......................................... 4, 15

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) ............................................. 4

Peters v. Aetna Inc.,

2 F.4th 199 (4th Cir. 2021) ................................... 17

Texas v. Biden,

142 S. Ct. 2528 (2022) ........................................... 14

Texas v. Biden,

20 F.4th 928 (5th Cir. 2021) ................................. 14

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ............................... 14, 15, 17

United States v. Students Challenging Regulatory

Agency Procedures (SCRAP),

412 U.S. 669 (1973) ............................................... 17

Whitman v. Am. Trucking Ass’ns,

Inc., 531 U.S. 457 (2001) ....................................... 15

Federal Statutes

Higher Education Relief Opportunities for

Students (HEROES) Act of 2003, Pub. Law No.

108-76, 117 Stat. 904 .............................................. 1

State Statutes

Mo. Rev. Stat. § 173.360 ............................... 2, 8, 9, 12

Mo. Rev. Stat. § 173.365 ............................................. 9

Mo. Rev. Stat. § 173.370 ............................................. 9

iv

Mo. Rev. Stat. § 173.375 ............................................. 9

Mo. Rev. Stat. § 173.385(1)....................................... 12

Mo. Rev. Stat. § 173.385(3)....................................... 12

Mo. Rev. Stat. § 173.385(9)......................................... 9

Mo. Rev. Stat. § 173.392 ............................................. 9

Mo. Rev. Stat. § 173.445 ........................................... 10

Mo. Rev. Stat. § 27.060 ............................................. 12

Mo. Rev. Stat. § 610.010(4)....................................... 13

Other Authorities

The Attorney General’s Role as Chief Litigator for

the United States, 6 Op. O.L.C. 47 (1982) ............ 13

Tr. of Oral Argument in United States v. Texas,

No. 22-58, (Nov. 29, 2022) ..................................... 16

1

INTEREST OF AMICI CURIAE

Amici curiae, the States of Utah, Ohio, Alabama,

Alaska, Florida, Georgia, Idaho, Indiana, Louisiana,

Mississippi, Montana, New Hampshire, Oklahoma,

Tennessee, Texas, West Virginia, and Wyoming, respectfully submit this brief in support of Respondents.

The political branches have repeatedly tried, and

failed, to pass legislation canceling or reducing student-loan debt. The Executive Branch sidestepped

these failures by claiming that it has long had the

power to cancel debt under the HEROES Act of 2003—

post-September-11 legislation providing debt relief for

the brave men and women fighting the war on terror.

See Pub. Law No. 108-76, 117 Stat. 904. The Secretary

of Education’s mass loan cancellation—$400 billion of

the $1.6 trillion outstanding federal student loan

debt—is among the most egregious examples of unauthorized executive action in American history. Its impact reaches all Americans, not least because the Secretary’s ultra vires maneuver adds astronomical costs

to the federal deficit. Further, Amici States have compelling interests in vindicating this grave violation of

the Constitution’s separation of powers.

Finally, when the federal government takes ultra

vires action like this and directly injures sovereign

States, those States have Article III standing to seek

redress of their injuries in federal court. Article III

cannot tolerate a theory of standing that makes it

more difficult for States to sue than for any other

plaintiff to do the same.

For these reasons, Amici States are filing this

brief.

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SUMMARY OF ARGUMENT

Respondent States have raised four theories of

standing. Amici States believe each theory is sufficient to establish standing. But this brief will focus

specifically on how this Court’s precedents support

one particular theory of standing; Amici States wish

to emphasize that Missouri has standing to sue because the loan-forgiveness program will injure MOHELA, which is an arm of the State of Missouri.

(Amici States submitted an amicus brief in the companion case, Department of Education v. Brown, Case

No. 22-535, that addresses why the loan-forgiveness

program is not authorized by statute.)

I. Article III protects the separation of powers by

empowering federal courts to decide only “Cases” and

“Controversies.” This cases-or-controversies requirement “serves to prevent the judicial process from being used to usurp the powers of the political

branches.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 408 (2013). It does so by ensuring that courts review the legality of state and federal policies only

when presented with a dispute where one party suffers real harm from the policy in question. Id. at 409.

This is one such case. Respondent States will suffer real, imminent, and particularized Article III injuries if the Secretary’s program goes into effect. That is

especially obvious with respect to Missouri, since the

program will inflict financial harm on MOHELA—a

non-profit governmental entity created by Missouri

statute to achieve “essential” government objectives.

MOHELA is part of the State of Missouri. The State

created MOHELA as “a public instrumentality.” Mo.

Rev. Stat. § 173.360. It tasked MOHELA with, among

other things: ensuring that “all eligible postsecondary

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education students have access to student loans;” supporting “the efforts of public colleges and universities

to create and fund capital projects;” and supporting

the “Missouri technology corporation’s ability to work

with colleges and universities in identifying opportunities for commercializing technologies.” Id. MOHELA’s board consists of Governor-appointed and

Senate-confirmed directors, all of whom can be removed by the Governor for cause and who serve term

limits defined by Missouri law. Id. And all of MOHELA’s powers and duties are prescribed by statute.

See Mo. Rev. Stat. §§ 173.350–173.450.

All this makes MOHELA part of the State of Missouri for constitutional purposes. That follows from

this Court’s cases, which have repeatedly recognized

that government corporations are the government for

constitutional purposes when they are “created by the

Government, … controlled by the Government, and

operate[d] for the Government’s benefit.” Dep’t of

Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 53-54

(2015); see also Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374, 399 (1995); Arkansas v. Texas, 346 U.S.

368, 371 (1953); Erickson v. United States, 264 U.S.

246, 248–49 (1924). Because MOHELA is part of the

State of Missouri, and because the challenged program will injure MOHELA financially, Missouri has

standing to sue.

Even if MOHELA were—in some ill-defined way—

distinct from Missouri, Missouri would still be injured

by the program and thus would still have standing to

sue. Missouri relies on MOHELA to contribute money

to its Lewis and Clark Discovery Fund. From the

Fund, Missouri finances capital projects at its state

colleges and universities. The cancellation will eat

into MOHELA’s revenue and thus impede its ability

4

to meet its Fund obligations. That, too, constitutes an

injury with respect to which Missouri can sue.

II. In hopes of proving an absence of standing, the

Department of Education (which is how Amici States

will refer to the Petitioners collectively), along with

several of its supporting amici invert bedrock Article

III principles in a way that would make it much more

difficult for States, as opposed to individual plaintiffs,

to challenge unconstitutional federal policies. While

this is an understandable tactical move given the federal government’s penchant for governing by executive fiat, see, e.g. NFIB v. OSHA, 142 S. Ct. 661 (2022)

(per curiam), the strategy finds no support in precedent. This Court has said that States get “special solicitude in [the] standing analysis.” Massachusetts v.

E.P.A., 549 U.S. 497, 520 (2007). No case suggests that

States are owed special hostility, so that injuries (like

monetary loss) that would suffice to establish standing for a private plaintiff are insufficient to do the

same for States.

The Department expresses concern that this Court

will too often become the venue for constitutional

struggles between the States and the federal government. See Pet. Br. 24. But any increase in statewide

suits stems from an increase in unlawful conduct by

the executive branch—accompanied by an increase in

the judiciary’s commitment to fulfilling its constitutional role by insisting that, just as the People “must

turn square corners when they deal with the government,” the government must “turn square corners

when it deals with them.” Niz-Chavez v. Garland, 141

S. Ct. 1474, 1486 (2021).

5

ARGUMENT

Missouri, at least, has standing to challenge the

debt-forgiveness program because the program will

harm MOHELA, which is an arm of the State of Missouri. Neither the Department nor the amici that support it raises a convincing argument to the contrary.

I.

Harms to MOHELA are harms to Missouri.

The Department hardly disputes that the loan cancellation will cause MOHELA to lose revenue. See Pet.

Br. 28–29. Nor does it deny that lost revenue constitutes an injury. Instead, relying on the unsupported

“bedrock principle of corporate separateness,” it argues that MOHELA is a distinct legal entity from Missouri and that an injury to MOHELA is not an injury

to Missouri. Id. The Department’s attempt to distance

MOHELA from Missouri overlooks the nature of government-created corporations, this Court’s precedents, and Missouri law.

1. The “law generally treats a corporation and its

sole owner as distinct persons, regardless of the closeness of the link between the two.” Pet. Br. 30. But government-created corporations are different. Government-created corporations are not a “particularly unusual[] phenomenon.” Lebron v. Nat’l R.R. Passenger

Corp., 513 U.S. 374, 386 (1995). The 19th and 20th

centuries contain a “long history of corporations created and participated in by the” government “for the

achievement of governmental objectives.” Id.

In Lebron, this Court explained that “Governmentcreated and -controlled corporations are (for many

purposes at least) part of the government itself,” based

on “past practice and understanding” and on “reason

itself.” Id. at 397. “[W]here … the Government creates

a corporation by special law, for the furtherance of

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governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of

that corporation, the corporation is part of the Government for purposes of the First Amendment.” Id. at

399.

More recently, this Court expanded on Lebron and

identified specific criteria for determining whether a

government-created corporate entity is, for constitutional purposes, part of “the Government.” See Dep’t

of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43 (2015).

Lebron, this Court said, “teaches” that, when determining whether a government-created corporation is

“a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over [statutory] disclaimer of [the

corporation’s] governmental status.” Id. at 55. The

Court analyzed the “practical reality” by looking to

three factors.

First, the Court looked to the “ownership and corporate structure” of the corporation at issue, Amtrak.

Id. at 51. Among other things, this Court thought it

significant that:

•

“Amtrak’s Board of Directors is composed of

nine members, one of whom is the Secretary

of Transportation” and “Seven other Board

members [who] are appointed by the President and confirmed by the Senate;”

•

Congress set salary limits and statutory

qualifications for board members;

•

Appointed board members are removable by

the President without cause; and

•

The President consults with leaders from

both parties in both houses of Congress to

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ensure board members represent “the major

geographic regions of the United States

served by Amtrak.”

Id. at 51-52.

Next, the Court assessed the government’s degree

of control over Amtrak’s “priorities and operations.”

Id. at 52, and noted that:

•

Amtrak must submit many annual reports to

Congress and the President about its performance;

•

FOIA applies to Amtrak in any year in which it

receives a federal subsidy;

•

The Inspector General Act applies to Amtrak

and requires Amtrak to maintain its own inspector general;

•

Congress conducts oversight hearings into

Amtrak’s budget, routes, and prices;

•

Congress requires Amtrak to pursue “numerous, additional goals defined by statute” rather

than “advancing its own private economic interests;” and

•

Congress “has mandated certain aspects of

Amtrak’s day-to-day operations,” such as requiring Amtrak to maintain a route between

Louisiana and Florida and requiring Amtrak to

purchase certain materials from American suppliers.

Id. at 52-53 (citations omitted throughout).

Third, the Court noted that Amtrak depended on

federal financial support. Id. at 53.

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The Court ultimately determined that, because

“Amtrak was created by the Government, is controlled

by the Government, and operates for the Government’s benefit,” it is part of the Government. Id.

2. MOHELA was “created by [Missouri], is controlled by [Missouri], and operates for [Missouri’s]

benefit.” Id. And so, perhaps not surprisingly, much of

what this Court said about Amtrak’s relationship to

the United States applies fully to MOHELA and Missouri.

First, MOHELA’s “ownership and corporate structure” shows a close relationship to its governmental

parent. MOHELA is “a public instrumentality” of the

State of Missouri. Mo. Rev. Stat. § 173.360. Just as

Amtrak’s board is composed of presidential appointees—with the advice and consent of the Senate—MOHELA’s board is composed of public officials and individuals appointed by the Missouri Governor with the

consent of the Missouri Senate. Id. One board member

is the Missouri “commissioner of higher education.”

Id. Missouri also prescribes the term limits for MOHELA’s board members. Id. And, just as the President

can remove Amtrak’s board members, Missouri’s governor can remove any board member “for misfeasance,

malfeasance, willful neglect of duty, or other cause after notice and a public hearing.” Id. True, Missouri

permits the Governor to remove a board member only

for cause, while the President may remove an Amtrak

Board Member without cause. But that is irrelevant

to the question whether MOHELA is an arm of the

State of Missouri; that Missouri law provides for a

method of removal simply reflects a State’s policy

choice about a state entity that state law created.

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Second, just as Congress does with Amtrak, Missouri exercises a significant degree of control over MOHELA’s “priorities and operations.” Ass’n of Am.

R.Rs., 575 U.S. at 52. Missouri law provides that MOHELA’s exercise of its statutorily conferred power

“shall be deemed to be the performance of an essential

public function.” Mo. Rev. Stat. § 173.360 (emphasis

added). It charges MOHELA with various “essential

public function[s],” including: of ensuring that “all eligible postsecondary education students have access

to student loans;” supporting “the efforts of public colleges and universities to create and fund capital projects;” and supporting the “Missouri technology corporation’s ability to work with colleges and universities

in identifying opportunities for commercializing technologies.” Id. Missouri law dictates the quorum and

affirmative-vote requirements for MOHELA board

meetings and requires that all meetings be open to the

public. Mo. Rev. Stat. § 173.365, id. § 173.370. All

“proceedings and actions” of MOHELA must comply

“with all statutory requirements respecting the conduct of public business by a public agency.” Mo. Rev.

Stat. § 173.365 (emphasis added). Board members

must execute surety bonds of $50,000 to be conditioned upon the faithful performance of their duties.

Mo. Rev. Stat. § 173.375. Significantly, Missouri law

also requires MOHELA to make contributions to the

State’s “Lewis and Clark discovery fund.” Mo. Rev.

Stat. §§ 173.385(9); 173.392.

Further, all of MOHELA’s powers and duties are

prescribed by statute. See Mo. Rev. Stat. §§ 173.350–

173.450. And MOHELA is “assigned to” the State’s

Department of Higher Education, with whom MOHELA must “annually file … a report of its previous

year’s income, expenditures and bonds or other forms

10

of indebtedness issued and outstanding.” Mo. Rev.

Stat. § 173.445.

Other precedents from this Court reinforce Missouri’s standing to sue to protect its interests in a public corporation that it created to perform “essential

public functions” and that it controls. In Erickson v.

United States, for example, this Court recognized that

the United States had standing to sue to recover damages for a breach of contract between a private party

and “the Spruce Production Corporation,” a Washington Corporation that the government created “as an

instrumentality for carrying out” World War I. 264

U.S. 246, 248–49 (1924); see also Hopkins Fed. Sav. &

Loan Ass’n v. Cleary, 296 U.S. 315, 340 (1935) (finding

Wisconsin had standing to challenge “the assault

upon the quasi public institutions that are the product

and embodiment of its statutes and its policy”).

Or take Arkansas v. Texas, 346 U.S. 368 (1953).

There, Arkansas had standing to sue to protect the

University of Arkansas from certain legal actions by

the State of Texas. Much as the Department does

here, Texas argued that “the injured party is the University of Arkansas, which does not stand in the shoes

of the State.” Id. at 370. And much as this Court would

later articulate in Lebron and Association of American

Railroads, the Arkansas Court said courts must “look

behind and beyond the legal form in which the claim

of the State is pressed” to “determine whether in substance … the State is indeed the real party in interest.” Id. at 371. The Court noted that Arkansas law

made the Board of University Trustees “‘a body politic

and corporate’ with power to issue bonds which do not

pledge to the credit of the State.” Id. at 370. Even so,

Arkansas law created the University, Arkansas’s governor appointed the Board of Trustees with consent of

11

the state senate, and the Board had to report expenditures to the state legislature—much like Missouri’s

arrangement with MOHELA. Id. Thus, Arkansas

could sue to protect its interests in the University. Id.

at 371.

The clear through-line of these cases is that a State

may sue to protect interests in an instrumentality it

created and over which it exercises control. Missouri

relies on MOHELA to ensure that its students have

access to student loans and to contribute $350 million

to its Lewis and Clark Discovery Fund. J.A. 61-62. It

surely has standing to protect its interests in MOHELA’s ability to perform the “essential public functions” it created MOHELA to perform.

3. The Department’s contrary arguments all fall

short. It analogizes this case to dicta from First National City Bank v. Banco Para el Comercio Exterior

de Cuba, 462 U.S. 611 (1983) (Bancec), which stated

that “government instrumentalities established as juridical entities distinct and independent from their

sovereign should normally be treated as such.” Id. at

626–27. Bancec is readily distinguishable. For starters, the case involved a foreign-created bank and a foreign country. Indeed, the Court noted that none of the

cases in which the Court had considered the legal status of government-created corporations in the United

States were relevant to its analysis of Bancec’s status.

See id. at 623 n.12. Further, Bancec distinguished foreign, government-created corporations like Bancec

from federal government agencies. Id. at 624. Later

decisions by this Court in Lebron and American Railroads make clear that government-created corporations over which the government exercises significant

control are, effectively, the government.

12

The Department’s other attempts to separate MOHELA from Missouri are unconvincing. The Department observes that Missouri law declares MOHELA

to be a “body corporate” with “perpetual succession”

and the right to “sue and be sued.” Pet Br. 29–30

(quoting Mo. Rev. Stat. §§ 173.360, 173.385(1) and

(3)). Association of American Railroads and Lebron

make clear that superficial labels affixed to a government-created corporation do not determine that corporation’s status. Rather, this Court looks to the nature of the entity, focusing on how much control the

government really has over its operations and goals.

Just as Congress’s express statement that Amtrak is

not an “agency or establishment of the United States

Government” was not dispositive in Lebron, 513 U.S.

at 391 (citation omitted), neither is a perfunctory line

in MOHELA’s enabling statute about MOHELA’s being “a body corporate” with “perpetual succession” dispositive here. The real test—at least under this

Court’s precedents—is whether Missouri created MOHELA and controls MOHELA’s structure and goals.

Unquestionably, it did and does.

Next, the Department notes that MOHELA was

not involved in the decision to bring this lawsuit. See

Pet. Br. 29–30. But Missouri law authorizes the Missouri Attorney General to sue “in the name of and on

the behalf of the state … to protect” its “interests” in

MOHELA’s performance of its essential public functions. Mo. Rev. Stat. § 27.060. MOHELA cannot opt

out of the suit. That puts MOHELA in the same position as federal agencies represented in litigation by

the Department of Justice, which, at least before this

case, had long taken the view that the U.S. Attorney

General has plenary authority to take positions in litigation on behalf of government agencies even over

13

their objection. See, e.g., League of Women Voters v.

Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (noting that the

Department of Justice declined to defend the constitutionality of a decision by the Executive Director of the

Election Assistance Commission to add a proof-of-citizenship requirement to a federal voting form); The Attorney General’s Role as Chief Litigator for the United

States, 6 Op. O.L.C. 47, 48 (1982) (noting that the Attorney General “has full plenary authority over all litigation” consistent with “common law and tradition”).

The Department also points to MOHELA’s public

comment that its only communication with Missouri’s

Attorney General about this lawsuit came through a

public records request under the State’s “sunshine

laws.” Pet. Br. 30. The Department’s argument is telling: that MOHELA is bound by the State’s “sunshine

laws” further shows that MOHELA is part of the State

of Missouri, not some independent, non-governmental

entity. See Mo. Rev. Stat. § 610.010(4) (defining the

“public governmental bod[ies]” subject to Missouri’s

sunshine laws).

II. The Department and its supporting amici

distort the nature of Article III’s standing inquiry.

To dispute the States’ theories of standing, the government and its amici distort well-established and

critically important standing principles.

First, this Court’s precedents give State Respondents “special solicitude in [the] standing analysis.”

Massachusetts v. E.P.A., 549 U.S. 497, 520 (2007).

This Court has reasoned that special solicitude is appropriate because, in our federal system, States “are

not relegated to the role of mere provinces or political

corporations, but retain the dignity, though not full

14

authority, of sovereignty.” Alden v. Maine, 527 U.S.

706, 715 (1999).

Despite surrendering some authority when entering into the Union, States retain—and have standing

to vindicate—their quasi-sovereign interests. States

have a quasi-sovereign interest in protecting the economic wellbeing of their residents. Alfred L. Snapp &

Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592,

607 (1982). Missouri is entitled to vindicate its right

to ensure that “students and universities have adequate funding for education.” Resp. Br. 22.

“[I]f nothing else,” special solicitude “means imminence and redressability are easier to establish here

than usual.” Texas v. Biden, 20 F.4th 928, 970 (5th

Cir. 2021), rev’d on other grounds 142 S. Ct. 2528

(2022). Yet the Department and its amici would invert

that principle and have this Court view the States’

theories of standing with special skepticism. See, e.g.

Pet. Br. 24; Br. for Samuel L. Bray and William Baude

as Amici Curiae 4–25. Under the normal standing

rules, financial injuries of any amount are usually

enough to confer Article III standing. See, e.g.,

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204

(2021) (“[C]ertain harms readily qualify as concrete

injuries under Article III. The most obvious are traditional tangible harms, such as physical harms and

monetary harms. If a defendant has caused physical

or monetary injury to the plaintiff, the plaintiff has

suffered a concrete injury in fact under Article III.”).

The Department says, however, that federal policies

that inflict financial harms on States should be immune from judicial review. See, e.g., Pet. Br. 24 (“Virtually all federal actions … have some incidental effects on state finances. If such incidental effects suffice for standing, every State would have standing to

15

challenge almost any federal policy.”); see also Br. for

Samuel L. Bray and William Baude as Amici Curiae

4–25. While every administration would like to avoid

judicial review of illegal executive actions, that desire

cannot justify making it harder for States to sue in

federal court than for a private plaintiff to do the

same.

Second, the Department feigns concern that this

Court will too often become the forum for Homeric constitutional showdowns between the federal government and the States. See Pet. Br. 24. But any increase

in multistate lawsuits reflects not—as the government and certain amici suggest—a sudden relaxation

of this Court’s standing doctrine or a danger that this

Court will assert “general legal oversight” over the political branches. TransUnion, 141 S.Ct. at 2203. Rather, it reflects the executive branch’s frequent inattention to the text and structure of the Constitution—

along with its tendency to regulate by administrative

diktat and its penchant for finding “elephants” in legislative “mouseholes.” Whitman v. Am. Trucking

Ass’ns, Inc., 531 U.S. 457, 468 (2001); NFIB v. OSHA,

142 S.Ct. 661 (2022).

While the government understandably seeks to

evade judicial review of its unprecedented, repeated,

and unconstitutional attempts to rule by executive

dictate, it is still, “emphatically[,] the province and

duty” of this Court “to say what the law is” and what

the Constitution allows. Marbury v. Madison, 1

Cranch 137, 177 (1803). If the government continues

to venture far beyond the borders of its constitutional

power, it should come as little surprise that this Court

must continually rein it back in. And it would be passing strange to say that the increase in unlawful federal

16

action counsels in favor of narrowing standing so as to

prevent challenges to those illegal acts.

Third, certain amici would like this Court to consider a policy’s net effect on a State before determining

whether that policy causes injury-in-fact. They contend that the States will economically benefit from

this massive cancellation in ways that will offset any

injury the States will suffer now. See, e.g., Br. of Amici

Curiae Local Gov’ts. at 9–19 (arguing that any financial harm caused by the cancellation should be offset

against the cancellation’s purported “countervailing

benefits”).

The idea of “net effect” injury has also come up in

oral argument recently. During argument for one case

during the October 2022 term, members of this Court

expressed concern that States can challenge a policy

simply by alleging “a dollar’s worth of costs” without

accounting for “the benefits on the other side.” See Tr.

of Oral Argument in United States v. Texas, No. 22-58,

at 88:24–89:25, (Nov. 29, 2022) at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/22-58_4fc4.pdf. Another question expressed a justice’s concern that States might claim

standing to challenge a federal policy by “saying … we

have some costs associated with this [policy] and we’re

not going to look at the benefits” or “show that [the

State’s] … gross costs are going to rise, let alone [its]

net costs.” Id. at 92:24-93:10.

A net-cost approach would seriously distort what

this Court has said about Article III injury. A party

does not have to show a lifetime, aggregate injury to

have Article III standing. Courts measure injury-infact at or near the time of the suit’s initiation. See, e.g.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 563–65 (1992)

17

(applying the imminence requirement for an injury in

fact); see also Clapper v. Amnesty Int’l USA, 568 U.S.

398, 409 (2013) (“[a] threatened injury must be certainly impending to constitute injury in fact”) (citation

omitted). It follows that the federal government cannot defeat a State’s theory of standing by pointing to

ostensible future “offsetting benefits” that will inure

to the States from a challenged federal policy. See Peters v. Aetna Inc., 2 F.4th 199, 218 & n.10 (4th Cir.

2021) (collecting cases). Standing is not “an ingenious

academic exercise in the conceivable.” United States v.

Students Challenging Regulatory Agency Procedures

(SCRAP), 412 U.S. 669, 688 (1973). And Article III

does not require federal courts to become actuaries

and predict the future net effect of a policy by offsetting the policy’s hypothetical future benefits against

its hypothetical future harms. Forcing courts to weigh

the likely net costs and benefits of government policies

would mean inserting courts into the other branches’

policy decisions—exactly what the standing doctrine

is supposed to prevent. TransUnion LLC, 141 S. Ct. at

2203.

The implications of a “net effect” injury-in-fact requirement are also troubling. A First Amendment

plaintiff does not have to show that his entire life

would have been better off if his government had not

arrested him for protesting. An environmental plaintiff does not have to show that the net aesthetic enjoyment of her life will be worse off due to a challenged

permitting decision. Nor should a State have to show

that it suffers a “net” injury over some undefined period of time to have Article III standing. Perhaps the

federal government would respond that States must

satisfy a different standard than these hypothetical

individual plaintiffs. But, again, this Court has made

18

clear that sovereign States cannot be subjected to a

higher bar than other plaintiffs for standing.

CONCLUSION

The Court should affirm the Eighth Circuit’s injunction and reverse the district court’s judgment.

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DATED this 3rd day of February, 2023.

Respectfully submitted,

/s/ Melissa A. Holyoak

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS

Ohio Solicitor General

SYLVIA MAY MAILMAN

Deputy Solicitor General

30 E. Broad St., 17th Fl.

Columbus, Ohio 43215

Telephone: (614) 466-8980

Email:

benjamin.flowers@ohioago.gov

SEAN D. REYES

Utah Attorney General

MELISSA HOLYOAK

Utah Solicitor General

Counsel of Record

350 N. State Street, Suite 230

P.O. Box 142320

Salt Lake City, UT 84114

Telephone: (801) 538-9600

Email:

melissaholyoak@agutah.gov

Counsel for Amici Curiae

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ADDITIONAL COUNSEL

Counsel for Amici States

STEVE MARSHALL

Attorney General

State of Alabama

TREG R. TAYLOR

Attorney General

State of Alaska

ASHLEY MOODY

Attorney General

State of Florida

CHRISTOPHER M. CARR

Attorney General

State of Georgia

RAÚL LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

JEFF LANDRY

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

AUSTIN KNUDSEN

Attorney General

State of Montana

JOHN M. FORMELLA

Attorney General

State of

New Hampshire

GENTNER DRUMMOND

Attorney General

State of Oklahoma

JONATHAN SKRMETTI

Attorney General

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

PATRICK MORRISEY

Attorney General

State of West Virginia

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BRIDGET HILL

Attorney General

State of Wyoming