Amicus Curiae Brief — United States, Petitioner v. Jonathan Skrmetti, Attorney General and Reporter for Tennessee, et al.

No. 23-477

In the Supreme Court of the United States

_____________

UNITED STATES, PETITIONER

v.

JONATHAN THOMAS SKRMETTI, ATTORNEY GENERAL AND

REPORTER FOR TENNESSEE, ET AL., RESPONDENTS

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_____________

BRIEF OF AMERICA FIRST LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

_____________

GENE P. HAMILTON

America First Legal Foundation

611 Pennsylvania Ave SE #231

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue

Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law

Counsel for Amicus Curiae

QUESTIONS PRESENTED

Tennessee’s Senate Bill 1 (SB 1) prohibits surgeries

and medical treatments that are intended to enable minors to appear and live in a manner that departs from

their biological sex. It subjects non-compliant medical

providers to sanctions imposed by the state’s attorney

general and health-licensing officials, and it also exposes

them to private civil lawsuits from the victims of these

treatments and their parents.

The district court preliminarily enjoined the named

defendants from enforcing certain provisions of SB 1

against anyone — and not just the named plaintiffs —

after concluding that the plaintiffs were likely to succeed

on their claim that the disputed provisions of SB 1 deny

“the equal protection of the laws.” The court of appeals

vacated this preliminary injunction. The question presented is:

Did the court of appeals correctly vacate the

preliminary injunction that restrained the

named defendants from enforcing certain provisions of SB 1?

(i)

TABLE OF CONTENTS

Questions presented ............................................................. i

Table of contents .................................................................. ii

Table of authorities ............................................................. iii

Interest of amici curiae.........................................................1

Summary of argument..........................................................2

Argument ...............................................................................6

I. A preliminary injunction cannot be granted

unless the movant makes a “clear showing”

that it is entitled to this relief ..................................6

II. The plaintiffs failed to make a “clear

showing” of standing ................................................7

A. The “minor plaintiffs” and the “parent

plaintiffs” failed to make a clear showing

of redressability ..................................................7

B. The “provider plaintiff” has Article III

standing but failed to make a “clear

showing” of third-party standing to

assert the constitutional rights of her

patients ...............................................................12

C. Because the original plaintiffs failed to

make a “clear showing” of standing, the

United States cannot seek preliminary

injunctive relief as an intervenor ....................15

III. The Court should address the merits even if

it concludes that the plaintiffs failed to make

a “clear showing” of standing ................................21

IV. The district court’s decision to award

statewide relief was indefensible ..........................24

Conclusion ............................................................................29

(ii)

TABLE OF AUTHORITIES

Cases

Arizona v. Biden, 40 F.4th 375 (6th Cir. 2022)....18, 21, 28

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ..............................................3, 8, 10, 19

Babb v. Wilkie, 589 U.S. 399 (2020) ..................................10

Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976) ..............15

Califano v. Yamasaki, 442 U. S. 682 (1979) .................5, 27

Dep’t of Education v. Brown, 600 U.S. 551 (2023) ............4

Dep’t of Homeland Security v. New York,

140 S. Ct. 599 (2020) ..........................................................5

Disability Advocates, Inc. v. New York Coalition

for Quality Assisted Living, Inc.,

675 F.3d 149 (2d Cir. 2012).........................................7, 16

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ................25

Edgar v. MITE Corp., 457 U.S. 624 (1982) ......................19

Ex Parte Young, 209 U.S. 123 (1908)..................................6

G.G. ex rel. Grimm v. Gloucester County School

Board, 822 F.3d 709 (4th Cir. 2016) ..............................11

Haaland v. Brackeen, 599 U.S. 255 (2023) ..................8, 18

Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir. 2001) .....3, 19

Kowalski v. Tesmer, 543 U.S. 125 (2004) .........................14

Lake v. HealthAlliance Hospital Broadway

Campus, --- F. Supp. 3d ----, 2024 WL 3226273

(N.D.N.Y.) ........................................................................19

Larson v. Valente, 456 U.S. 228 (1982) .............................12

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014) .................................................23

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).....2, 8

(iii)

Mazurek v. Armstrong, 520 U.S. 968 (1997)..................2, 6

Murthy v. Missouri, 144 S. Ct. 1972 (2024) ...................2, 4

Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) .............20

Overstreet v. Lexington-Fayette Urban County

Gov’t, 305 F.3d 566 (6th Cir. 2002) ..................................6

Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574 (1999) ..........................................................22

Seila Law LLC v. Consumer Financial Protection

Bureau, 591 U.S. 197 (2020) ..........................................17

Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013) ................28

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ............................................................23

Town of Chester v. Laroe Estates, Inc.,

581 U.S. 433 (2017) ..........................................................16

TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) ..........4

Trump v. Hawaii, 585 U.S. 667 (2018) ...............................5

United States ex rel. Texas Portland Cement Co. v.

McCord, 233 U.S. 157 (1914) ..........................................16

United States v. National Treasury Employees

Union, 513 U.S. 454 (1995) ............................................28

VR Acquisitions, LLC v. Wasatch County,

853 F.3d 1142 (10th Cir. 2017) .......................................24

Walters v. Edgar, 163 F.3d 430 (7th Cir. 1998) ...............16

Whole Woman’s Health v. Jackson,

141 S. Ct. 2494 (2021) ..........................6, 17, 18, 20, 21, 28

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) ........................................3, 8, 10, 19, 26

Winter v. Natural Resources Defense Council,

555 U.S. 7 (2008) ................................................................6

(iv)

Statutes

42 U.S.C. § 1983 ...................................................................15

42 U.S.C. § 2000h-2 .............................................................16

Tenn. Code § 68-33-102(5)(A)–(B) .....................................26

Tenn. Code § 68-33-103(a)(1)(A)–(B) ................................26

Tenn. Code § 68-33-105.....................................................3, 8

Tenn. Code § 68-33-105(a)(1) ...............................................3

Tenn. Code § 68-33-105(e)(1)–(2).........................................3

Other Authorities

David P. Currie, Misunderstanding Standing,

1981 Sup. Ct. Rev. 41 ................................................15, 24

(v)

In the Supreme Court of the United States

_____________

No. 23-477

UNITED STATES, PETITIONER

v.

JONATHAN THOMAS SKRMETTI, ATTORNEY GENERAL AND

REPORTER FOR TENNESSEE, ET AL., RESPONDENTS

_____________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_____________

BRIEF OF AMERICA FIRST LEGAL FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

_____________

INTEREST OF AMICI CURIAE 1

Amicus curiae America First Legal Foundation is a

nonprofit organization dedicated to promoting the rule of

law in the United States and defending individual rights

guaranteed under the Constitution and federal statutes.

America First Legal has a substantial interest in this

case because it firmly believes, as part of its mission to

1.

No counsel for a party authored any part of this brief. And no

one other than the amicus curiae, its members, or its counsel financed the preparation or submission of this brief. Counsel of

record received timely notice of the intent to file this brief under

Rule 37.2.

(1)

2

encourage understanding of the law and individual rights

guaranteed under the Constitution of the United States,

that a proper understanding of those rights must be informed by reference to their text, and any other rights

not expressly mentioned must be deeply rooted in this

nation’s history and tradition. And further, America

First Legal believes that a proper understanding of the

law in the United States must include a coherent, consistent understanding of the role of federal courts in deciding cases or controversies presented to them.

SUMMARY OF ARGUMENT

A preliminary injunction is an “ ‘extraordinary’ ” remedy, which cannot issue “ ‘unless the movant, by a clear

showing, carries the burden of persuasion.’ ” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (citation omitted). The court of appeals correctly vacated the preliminary injunction because the plaintiffs

failed to make a clear showing of standing. Pet. App. 53a

(noting that the plaintiffs had failed to demonstrate redressability in the district court and remanding for factual development on that issue).

A plaintiff who seeks relief in federal court must

plead and eventually prove that the requested relief is

“likely” to redress his injuries. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992) (“[I]t must be ‘likely,’

as opposed to merely ‘speculative,’ that the injury will be

‘redressed by a favorable decision.’ ” (citation omitted)).

And to obtain a preliminary injunction, the plaintiffs

needed to make a “clear showing” of likely success on the

redressability issue. See Murthy v. Missouri, 144 S. Ct.

1972, 1986 (2024) (“At the preliminary injunction stage,

3

. . . the plaintiff must make a ‘clear showing’ that she is

‘likely’ to establish each element of standing.” (citing

Winter v. Natural Resources Defense Council, Inc., 555

U.S. 7, 22 (2008)). Yet there is an obvious redressability

problem in this lawsuit that the district court never discussed. Tennessee’s ban on gender-transitioning treatments authorizes private civil lawsuits to be brought

against non-compliant providers. See Tenn. Code § 6833-105 (Pet. App. 304a–306a). It allows victims of prohibited treatments and their parents to sue for compensatory damages, punitive damages, and attorney’s fees,2 and

it establishes an extraordinarily long period of limitations that allows suit to be filed “[w]ithin thirty (30)

years from the date the minor reaches eighteen (18)

years of age” or “[w]ithin ten (10) years of the minor’s

death if the minor dies.”3

But the plaintiffs are seeking declaratory and injunctive relief only against the state’s attorney general and

health officials. J.A. 1 (caption); J.A. 50 (requested relief). The plaintiffs are not seeking (and cannot seek) relief that will prevent private litigants from suing providers who violate the statute. See Whole Woman’s Health

v. Jackson (Whole Woman’s Health II), 595 U.S. 30, 39–

40 (2021); Arizonans for Official English v. Arizona, 520

U.S. 43, 66 & n.21 (1997); Hope Clinic v. Ryan, 249 F.3d

603, 605 (7th Cir. 2001) (en banc) (“[P]laintiffs lack standing to contest . . . statutes authorizing private rights of

action . . . .”). So it is not at all apparent how a judgment

2.

3.

Tenn. Code § 68-33-105(a)(1) (Pet. App. 304a).

Tenn. Code § 68-33-105(e)(1)–(2) (Pet. App. 305a–306a).

4

that restrains the named defendants from enforcing SB

1 will cause providers to resume offering prohibited

treatments when they remain exposed to private lawsuits and potentially ruinous liability. It certainly cannot

be assumed that the requested relief will make these

services available. Pet. App. 53a (noting the absence of

“evidence about whether any of the plaintiff doctors plan

to offer these treatments in the future if they succeed on

these constitutional claims.”).

The plaintiffs bear the burden of proving redressabil4

ity, and they cannot obtain a preliminary injunction by

ignoring the redressability component of Article III

standing. See Murthy, 144 S. Ct. at 1986 (“At the preliminary injunction stage, . . . the plaintiff must make a

‘clear showing’ that she is ‘likely’ to establish each element of standing.” (citation omitted)). The plaintiffs

needed to produce evidence in the district court showing

that their requested relief would cause providers in Tennessee to barrel ahead and offer care in violation of SB 1

despite the ongoing risk of private lawsuits. And the district court was obligated to demand evidence of redressability before awarding a preliminary injunction. See

Dep’t of Education v. Brown, 600 U.S. 551, 560 (2023)

(“We have an obligation to assure ourselves of litigants’

standing under Article III” (citation and internal quotation marks omitted)). The district court’s dereliction was

inexcusable, and this Court should affirm the vacatur of

4.

See TransUnion LLC v. Ramirez, 594 U.S. 413, 430–31 (2021)

(“As the party invoking federal jurisdiction, the plaintiffs bear

the burden of demonstrating that they have standing.”).

5

the preliminary injunction on the ground that the plaintiffs failed to produce sufficient evidence of standing in

the district court.

The Court should also rebuke the district court for

awarding statewide relief rather than limiting its preliminary injunction to the named plaintiffs. Compare Pet.

App. 221a (enjoining the named defendants from enforcing the disputed portions of SB 1 against anyone) with

Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the

plaintiffs” (emphasis added)); Pet. App. 51a–52a (citing

authorities). The plaintiffs produced no evidence showing

that a universal remedy of this sort would be necessary

to redress their injuries, and the statewide relief ordered

by the district court is the latest in a long string of district-court rulings that assume the propriety of universal

remedies whenever a district court or a litigant wants to

categorically enjoin the enforcement of a statute. See

Trump v. Hawaii, 585 U.S. 667, 715–21 (2018) (Thomas,

J., concurring) (criticizing this practice); Dep’t of Homeland Security v. New York, 140 S. Ct. 599, 600–01 (2020)

(Gorsuch, J., concurring) (same). If the Court decides to

remand this case per the Solicitor General’s request,

then it should instruct the lower courts to limit any preliminary injunctive relief to the named litigants.

6

ARGUMENT

I.

A PRELIMINARY INJUNCTION CANNOT BE

GRANTED UNLESS THE MOVANT MAKES A

“CLEAR SHOWING” THAT IT IS ENTITLED TO

THIS RELIEF

This Court has repeatedly held that a preliminary injunction is an “ ‘extraordinary’ ” remedy, which cannot

issue “ ‘unless the movant, by a clear showing, carries

the burden of persuasion.’ ” Mazurek v. Armstrong, 520

U.S. 968, 972 (1997) (emphasis in original) (citation omitted); see also Winter v. Natural Resources Defense

Council, 555 U.S. 7, 22 (2008) (similar); Whole Woman’s

Health v. Jackson (Whole Woman’s Health I), 141 S. Ct.

2494, 2495 (applicant for a preliminary injunction must

make a “ ‘strong showing’ ” that it satisfies all four requirements) (citation omitted); Ex parte Young, 209 U.S.

123, 166 (1908) (“[N]o injunction ought to be granted unless in a case reasonably free from doubt.”).

The district court acknowledged this demanding

standard at the outset of its opinion. Pet. App. 135a (“ ‘A

preliminary injunction is an extraordinary remedy which

should be granted only if the movant carries his or her

burden of proving that the circumstances clearly demand

it.’ ” (quoting Overstreet v. Lexington-Fayette Urban

County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002))). Yet the

district court went ahead and awarded a preliminary injunction even though the plaintiffs fell far short of a

“clear showing” of standing, and even though their constitutional claims rest on a novel and debatable application of this Court’s Fourteenth Amendment doctrines.

7

II. THE PLAINTIFFS FAILED TO MAKE A “CLEAR

SHOWING” OF STANDING

The plaintiffs consist of three “minor plaintiffs” who

wish to obtain the treatments outlawed by SB 1,5 five individuals who are parents of these minor children (the

“parent plaintiffs”),6 and one “provider plaintiff” (Susan

Lacy) who has been providing the prohibited treatments

to minors in Tennessee. Each set of plaintiffs failed to

make a “clear showing” of standing. And because the

plaintiffs failed to make a “clear showing” of standing,

the United States has failed to make a “clear showing”

that it is entitled to preliminary injunctive relief as an

intervenor. See Disability Advocates, Inc. v. New York

Coalition for Quality Assisted Living, Inc., 675 F.3d

149, 160 (2d Cir. 2012) (“Intervention is a procedural

means for entering an existing federal action. . . .

‘[B]ecause intervention is ancillary to the main cause of

action, intervention will not be permitted to breathe life

into a “nonexistent” law suit.’ ” (quoting Fuller v. Volk,

351 F.2d 323, 328 (3d Cir. 1965)).

A. The “Minor Plaintiffs” and the “Parent Plaintiffs”

Failed To Make A Clear Showing Of Redressability

None of the minor plaintiffs or parent plaintiffs made

a clear showing of redressability. They claim that they

have been injured because the defendants’ enforcement

5.

6.

The names that the minor plaintiffs are using in this lawsuit are

L.W., Ryan Roe, and John Doe.

The parent plaintiffs’ names are Brian Williams, Samantha Williams, Rebecca Roe, James Doe, and Jane Doe.

8

of SB 1 has made gender-transitioning services unavailable to minors in Tennessee. But there is no evidence or

reason to believe that a judgment that restrains the

named defendants from enforcing SB 1 will cause providers in Tennessee to resume offering the prohibited

services. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992) (“[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’ ” (citation omitted)). SB 1 not only

subjects non-compliant providers to penalties imposed

by the attorney general and state health officials, it also

creates a private right of action that allows any minor (or

parents of a minor) harmed by the forbidden treatments

to sue for damages. See Tenn. Code § 68-33-105 (Pet.

App. 304a–306a). The plaintiffs did not (and cannot) request an injunction against the enforcement of this private cause of action because none of the named defendants have any role in enforcing it. See Whole Woman’s

Health II, 595 U.S. at 39–40. So the plaintiffs (and the

district court) needed to show that a judgment against

the state’s executive-branch officials, which will not bind

the state courts or non-parties to the lawsuit,7 will cause

Vanderbilt University Medical Center (VUMC) or other

providers in Tennessee to resume offering the services

outlawed by SB 1 — even though the requested relief

does nothing to remove the threat of ruinous civil liability imposed by section 68-33-105.

7.

See Arizonans for Official English, 520 U.S. at 66 & n.21; Haaland v. Brackeen, 599 U.S. 255, 292–94 (2023).

9

The plaintiffs failed to make a “clear showing” that

Vanderbilt University Medical Center or any other provider will violate SB 1 and expose itself to private civil

lawsuits if the named defendants are enjoined from enforcing the statute. The only piece of evidence that the

plaintiffs submitted on this issue was a carefully hedged

declaration from C. Wright Pinson, which does more to

undermine than support their case. J.A. 268–270. Paragraph 7 of Pinson’s declaration says that Vanderbilt

University Medical Center will not offer any hormone

therapy to minors after SB 1 takes effect, even under the

continuing-care exception:

After the Act was signed into law, VUMC reviewed the Act and determined that on and after the Effective Date it could no longer offer

any Hormone Therapy to minor patients.

VUMC has communicated this determination

to its patients through communications distributed through various media . . .

Pinson Decl. ¶ 7 (J.A. 269). But then Pinson tacks on this

cryptic passage in paragraph 9:

Should enforcement of the Act’s provisions

prohibiting Hormone Therapy be deferred, delayed or enjoined, VUMC would continue to

provide Hormone Therapy consistent with

prevailing standards of care for persons with

gender dysphoria to those minor patients of

VUMC for whom such care is clinically appropriate, given the assessment of the patient’s

condition.

10

Pinson Decl. ¶ 9 (J.A. 270). The condition described in

paragraph 9 — a ruling that enjoins “enforcement of the

Act’s provisions prohibiting Hormone Therapy” — is unclear on whether Vanderbilt needs an order that enjoins

enforcement only by the named defendants in this lawsuit, or whether Vanderbilt needs a ruling that goes further and enjoins enforcement of SB 1 by the state judicial officials and private-party litigants who “enforce” the

statute through civil litigation.

The most natural reading of Pinson’s declaration is

that Vanderbilt University Medical Center will not provide the outlawed treatments unless the plaintiffs obtain

an injunction that blocks enforcement of SB 1’s provisions by everyone. But that relief is unattainable8 and the

plaintiffs are not requesting it. J.A. 50. And the redressability inquiry turns on whether the requested relief will

cause providers in Tennessee to offer hormone therapy

despite the ongoing threat of private lawsuits.9 Pinson’s

declaration is coy (perhaps deliberately so) on this question, and the plaintiffs failed to provide evidence that any

other provider in Tennessee will offer hormone therapy

8.

9.

See Whole Woman’s Health II, 595 U.S. at 44 (“[N]o court may

‘lawfully enjoin the world at large’ ” (citation omitted)); Arizonans for Official English, 520 U.S. at 66 & n.21; Hope Clinic v.

Ryan, 249 F.3d 603, 605 (7th Cir. 2001) (“[P]laintiffs lack standing to contest . . . statutes authorizing private rights of action”).

See Babb v. Wilkie, 589 U.S. 399, 413 (2020) (“It is bedrock law

that ‘requested relief’ must ‘redress the alleged injury.’ ” (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83,

103 (1998)).

11

and risk private lawsuits if the named defendants are enjoined.

Pinson’s declaration is also hearsay10 and the defendants had no opportunity to cross-examine him on the

meaning of paragraph 9. Although it has become common for lower courts to admit hearsay declarations and

affidavits into evidence at the preliminary-injunction

stage,11 neither this Court nor the federal rules of evidence have ever approved this practice. See Fed. R.

Evid. 802. Any ambiguity in Pinson’s declaration should

redound to the detriment of the plaintiffs, who chose to

present Pinson’s statement in the form of a hearsay declaration that deprived the defendants of the opportunity

to ask clarifying questions on the meaning of paragraph

9.

The minor plaintiffs and the parent plaintiffs needed

to make a “clear showing” of redressability. The Pinson

declaration falls far short of the required “clear showing,” and the plaintiffs failed to offer any other evidence

on the redressability issue.

10. Many lower courts have allowed hearsay to be admitted into

evidence at the preliminary-injunction stage, despite the prohibition on hearsay in Fed. R. Evid. 802, although neither this

Court nor the federal rules of evidence have ever approved this

practice. See G.G. ex rel. Grimm v. Gloucester County School

Board, 822 F.3d 709, 725 (4th Cir. 2016) (collecting authorities),

vacated and remanded, 580 U.S. 1168 (2017).

11. See G.G., 822 F.3d at 725 (collecting authorities), vacated and

remanded, 580 U.S. 1168 (2017).

12

B. The “Provider Plaintiff” Has Article III Standing But

Failed To Make A “Clear Showing” Of Third-Party

Standing To Assert The Constitutional Rights Of Her

Patients

The only plaintiff who made a “clear showing” of Article III standing was Dr. Susan N. Lacy, the “provider

plaintiff” who claims that the defendants’ enforcement of

SB 1 threatens her with the loss of her medical license if

she offers or provides the prohibited treatments. See

Lacy Decl. ¶ 19 (J.A. 101). Unlike the minor plaintiffs

and the parent plaintiffs, Dr. Lacy does not need to

prove that a favorable judgment will cause her (or other

providers) to offer the services prohibited by SB 1, because Dr. Lacy’s injury arises from the threat that SB 1

might be enforced against her by the named defendants.

A judgment that restrains the state’s executive officials

from enforcing SB 1 will redress Dr. Lacy’s injury by

removing that threat, even if it continues to leave Dr.

Lacy exposed to private lawsuits and even if it continues

to deter Dr. Lacy from providing the prohibited services.

See Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A]

plaintiff satisfies the redressability requirement when he

shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury”).

The problem for Dr. Lacy is not Article III standing.

Yet Dr. Lacy nonetheless lacks standing to sue because

she does not allege that SB 1 violates her constitutional

rights. Dr. Lacy is not asserting the substantive-due-

13

process claim brought by the parent plaintiffs,12 and neither the plaintiffs nor the United States is relying on the

section 1557 preemption claims13 in their motion for preliminary injunction. See Pls.’ Mem. of Law in Support of

Mot. for Prelim. Inj., L.W. v. Skrmetti, No. 3:23-cv-00376

(M.D. Tenn.), ECF No. 33, at 1–25 (no mention of section

1557 as a basis for preliminary injunctive relief); Intervenors’ Mem. of Law in Support of Mot. for Prelim. Inj.,

L.W. v. Skrmetti, No. 3:23-cv-00376 (M.D. Tenn.), ECF

No. 41, at 1–25 (same).

The only remaining claim that Dr. Lacy is asserting

is equal protection.14 But Dr. Lacy is not contending that

the enforcement of SB 1 violates her equal-protection

rights; she claims only that it violates the equalprotection rights of her patients. See Complaint ¶ 162

(J.A. 44) (“The ban violates the . . . equal protection

rights of Dr. Lacy’s current and future adolescent patients.”). The plaintiffs therefore needed to make a “clear

showing” that Dr. Lacy has “third-party standing” to assert her patients’ equal-protection rights. And this Court

has established a two-part test to determine whether a

litigant may assert the constitutional rights of a third

party:

12. See Complaint ¶¶ 163–171 (J.A. 45–46) (conceding that only the

“parent plaintiffs” are asserting the parental-rights claim under

the Fourteenth Amendment).

13. See Complaint ¶¶ 172–190 (J.A. 46–50) (describing the section

1557 claims, which Dr. Lacy is asserting).

14. See Complaint ¶¶ 148–162 (J.A. 42–44).

14

[T]here may be circumstances where it is necessary to grant a third party standing to assert

the rights of another. But we have limited this

exception by requiring that a party seeking

third-party standing make two additional

showings. First, we have asked whether the

party asserting the right has a “close” relationship with the person who possesses the right.

Powers v. Ohio, 499 U.S. 400, 411 (1991). Second, we have considered whether there is a

“hindrance” to the possessor’s ability to protect

his own interests. Ibid.

Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004). But the

plaintiffs failed to make a “clear showing” that Dr. Lacy

could satisfy each of these criteria for third-party standing. Their opening brief in support of a preliminary injunction ignored the issue,15 and their reply brief offered

nothing more than a bald assertion unsupported by argument or evidence.16 The presence of the transgender

15. See Pls.’ Mem. of Law in Support of Mot. for Prelim. Inj., L.W.

v. Skrmetti, No. 3:23-cv-00376 (M.D. Tenn.), ECF No. 33, at 1–

25 (no argument for third-party standing).

16. See Pls.’ Reply in Support of Mot. for Prelim. Inj., L.W. v.

Skrmetti, No. 3:23-cv-00376 (M.D. Tenn.), ECF No. 146, at 4

(“Dr. Lacy therefore has standing to seek relief on their behalf

because: (i) she will suffer an injury from the Ban as it forces

her to alter care for existing patients and/or threatens her ability to treat those patients in accordance with proper medical

guidelines and her ethical obligations; (ii) as a medical provider,

she has a close relationship to those patients subject to discrimination under the Ban; and (iii) those patients face meaningful

(continued…)

15

minors in this litigation defeats any contention that Dr.

Lacy’s patients face a “hindrance” to suing on their own

behalf, and the eagerness of white-shoe law firms and

public-interest litigation outfits to represent transgender

patients who sue over laws like SB 1 makes it all but impossible to claim that transgender patients are incapable

of protecting their own interests unless their medical

providers sue on their behalf.

Finally, even if Dr. Lacy could somehow satisfy the

Kowalski test for third-party standing, she would have

no cause of action to sue state officials under 42 U.S.C.

§ 1983 or the Declaratory Judgment Act. See Bates v.

Sponberg, 547 F.2d 325, 331 (6th Cir. 1976) (“42 U.S.C.

§ 1983 offers relief only to those persons whose federal

statutory or federal constitutional rights have been violated”); David P. Currie, Misunderstanding Standing,

1981 Sup. Ct. Rev. 41, 45 (explaining that the text of 42

U.S.C. § 1983 “authorizes suit by anyone alleging that he

has been deprived of rights under the Constitution or

federal law, and by no one else.” (emphasis added)).

C. Because The Original Plaintiffs Failed To Make A

“Clear Showing” Of Standing, The United States

Cannot Seek Preliminary Injunctive Relief As An

Intervenor

The United States separately moved for a preliminary injunction in the district court after intervening un-

obstacles in enforcing their rights given the extraordinary privacy issues at stake.”).

16

der 42 U.S.C. § 2000h-2.17 But the United States cannot

make a “clear showing” of likely success on the merits

when the original plaintiffs failed to make an adequate

demonstration of standing. A party cannot intervene into

a case if the plaintiffs who brought the lawsuit lack

standing. See United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 163–64 (1914) (“These

rights to intervene . . . presuppose an action duly

brought under its terms. In this case the cause of action

had not accrued to the creditors who undertook to bring

the suit originally. The intervention could not cure this

vice in the original suit.”); Disability Advocates, Inc. v.

New York Coalition for Quality Assisted Living, Inc.,

675 F.3d 149, 160 (2d Cir. 2012) (“Intervention is a procedural means for entering an existing federal action. . . .

‘[B]ecause intervention is ancillary to the main cause of

action, intervention will not be permitted to breathe life

into a “nonexistent” law suit.’ ” (citation omitted); see also id. (citing authorities); Walters v. Edgar, 163 F.3d 430,

432–33 (7th Cir. 1998) (Posner, J.) (“[I]f the named plaintiffs lacked standing when they filed the suit, there were

no other party plaintiffs to step into the breach created

by the named plaintiffs’ lack of standing”).

Nor has the United States made any attempt to

demonstrate that it independently possesses Article III

standing to sue Tennessee’s officials over SB 1. Cf. Town

of Chester v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017)

17. See Intervenors’ Mem. of Law in Support of Mot. for Prelim.

Inj., L.W. v. Skrmetti, No. 3:23-cv-00376 (M.D. Tenn.), ECF No.

41, at 1–25.

17

(“At least one plaintiff must have standing to seek each

form of relief requested in the complaint.”). The United

States has not even alleged (let alone made a “clear

showing”) that it is suffering an injury in fact from the

defendants’ enforcement of SB 1. See United States’

Complaint in Intervention, L.W. v. Skrmetti, No. 3:23-cv00376 (M.D. Tenn.), ECF No. 38-2 (no allegations of Article III standing); Intervenors’ Mem. of Law in Support

of Mot. for Prelim. Inj., L.W. v. Skrmetti, No. 3:23-cv00376 (M.D. Tenn.), ECF No. 41, at 1–25 (no argument

or discussion of the United States’ standing to sue). And

no such injury is apparent. The United States is not

seeking any of the services proscribed by SB 1, and it

has not alleged that its employees or officers are offering

or providing those treatments to minors in Tennessee.

***

The plaintiffs and the district court overlooked the

redressability problems because they appear to be laboring under the widely held belief that a judicial pronouncement of unconstitutionality cancels or suspends

the statute itself, rather than merely restraining the

named defendants from enforcing the disputed law. But

see Whole Woman’s Health v. Jackson (Whole Woman’s

Health I), 141 S. Ct. 2494, 2495 (2021) (“[F]ederal courts

enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”); Seila Law LLC v.

Consumer Financial Protection Bureau, 591 U.S. 197,

253 (2020) (Thomas, J., concurring in part and dissenting

in part) (“The Federal Judiciary does not have the power to excise, erase, alter, or otherwise strike down a statute.”); Arizona v. Biden, 40 F.4th 375, 395–96 (6th Cir.

18

2022) (Sutton, C.J., concurring) (“A valid Article III

remedy ‘operate[s] with respect to specific parties,’ not

with respect to a law ‘in the abstract.’ ” (quoting California v. Texas, 593 U.S. 659, 672 (2021)); id. at 396 (“[W]e

do not remove — ‘erase’ — from legislative codes unconstitutional provisions.”). The plaintiffs’ court filings and

the district court’s opinion are rife with statements and

rhetoric that reflect this misunderstanding of judicial review.

The plaintiffs, for example, repeatedly told the district court that their requested relief would prevent SB 1

from going “into effect.”18 That is untrue; SB 1 would

have taken effect regardless of whether a federal court

awarded declaratory or injunctive relief against the

named defendants.19 And no preliminary injunction or

final judgment from a federal district court can bind the

state judiciary or stop non-parties from initiating private

18. See Complaint ¶ 1 (J.A. 2) (“Absent intervention by this Court,

the law will go into effect on July 1, 2023”); id. at ¶ 5 (J.A. 4) (“If

the Health Care Ban goes into effect”); id. at ¶ 6 (J.A. 5) (“if the

law takes effect”); id. at ¶ 140 (J.A. 39) (“If the Health Care Ban

takes effect”); id. at ¶ 143 (J.A. 39) (“the Health Care Ban, if

permitted to take effect”); Memorandum of Law in Support of

Mot. for Prelim. Inj., L.W. v. Skrmetti, No. 3:23-cv-00376 (M.D.

Tenn.), ECF No. 33, at 1 (“Absent intervention by this Court,

the law will go into effect on July 1, 2023”); id. at 2 (“The Ban

will cause immediate and irreparable harm if allowed to take effect”); id. at 22 (“If permitted to go into effect, the Ban will inflict on Plaintiffs severe and irreparable harm”).

19. See Whole Woman’s Health I, 141 S. Ct. at 2495 (“[F]ederal

courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”); Haaland, 599 U.S. at 292–

94; Arizona, 40 F.4th at 395–96 (Sutton, C.J., concurring).

19

civil lawsuits under SB 1. See Whole Woman’s Health v.

Jackson (Whole Woman’s Health II), 595 U.S. 30, 39–40

(2021); Arizonans for Official English v. Arizona, 520

U.S. 43, 66 & n.21 (1997); Hope Clinic v. Ryan, 249 F.3d

603, 605 (7th Cir. 2001). Yet the plaintiffs claim that

courts can “enjoin” statutes themselves, rather than the

named defendants charged with enforcing those statutes,20 and they falsely assert that a preliminary injunction will “preserve the status quo” even though the federal courts are powerless to thwart the private civil actions authorized by SB 1.21

20. See Memorandum of Law in Support of Mot. for Prelim. Inj.,

L.W. v. Skrmetti, No. 3:23-cv-00376 (M.D. Tenn.), ECF No. 33,

at 22 (“As the court noted in enjoining a similar Alabama law

. . .”).

21. See Memorandum of Law in Support of Mot. for Prelim. Inj.,

L.W. v. Skrmetti, No. 3:23-cv-00376 (M.D. Tenn.), ECF No. 33,

at 2 (“[T]he State will not incur any harm if the status quo is

maintained while this case proceeds.”); id. (“[F]ederal courts

have issued preliminary injunctions to preserve the status quo

. . . . This Court should do the same.”). It is also far from clear

that a preliminary injunction can prevent the named defendants

from enforcing SB 1 against providers who violate the statute

while the preliminary injunction is in effect if the state ultimately prevails in this litigation. See Edgar v. MITE Corp., 457 U.S.

624, 649 (1982) (Stevens, J., concurring in part and concurring in

the judgment) (“The preliminary injunction did not purport to

provide permanent immunity for violations of the statute that

occurred during its effective period.”); Lake v. HealthAlliance

Hospital Broadway Campus, --- F. Supp. 3d ----, 2024 WL

3226273, *8 n.14 (N.D.N.Y.) (“[I]f an injunction is dissolved the

State may enforce the statute against violators for conduct that

occurred while the injunction was in place.”).

20

The district court’s opinion reflects a similar misunderstanding of the judicial role. The district court said

that the plaintiffs were requesting “a statewide injunction of SB1 in its entirety,”22 even though injunctions operate against defendants and not statutes. See Whole

Woman’s Health I, 141 S. Ct. at 2495; Okpalobi v. Foster, 244 F.3d 405, 426 n.34 (5th Cir. 2001) (en banc) (“An

injunction enjoins a defendant, not a statute.”). The district court later announced that it was imposing “a statewide injunction of SB1,”23 once again implying that

courts enjoin statutory provisions rather than litigants.24

When district courts and litigants repeatedly deploy nomenclature suggesting that judicially disapproved statutes are formally suspended, it becomes easy for them to

miss the Article III redressability issues that arise from

the continued enforceability of the private rights of action in SB 1.

The Court should remind lower courts and litigants

that: (1) Federal courts are incapable of “enjoining”

statutes; they can enjoin only the named defendants in a

22. Pet. App. 138a.

23. Pet. App. 212a; see also id. (“[A] state-wide injunction of SB1 is

necessary to redress Plaintiffs’ injuries.”); Pet. App. at 216a

(“[A] state-wide injunction of SB1 during the pendency of this

litigation . . . is warranted.”).

24. The writ-of-erasure rhetoric in the district court’s opinion is

puzzling given that the district court acknowledged elsewhere in

its opinion that it could not enjoin enforcement of the private

right of action. Pet. App. 209a–210a; see also Pet. App. 212a

(“[A]ny injunction will not affect the private right of action under SB1 . . . .”).

21

lawsuit;25 (2) Neither a preliminary nor permanent injunction can prevent a statute from “taking effect”;26 and

(3) An injunction from a federal court does not and cannot “preserve the status quo” when the disputed statute

authorizes private civil lawsuits against those who violate

the disputed statute. Repudiating this nomenclature

would go a long way toward preventing a repeat of this

episode, where the plaintiffs and the district court

shirked their responsibilities to ensure that the requirements of Article III standing were met.

III. THE COURT SHOULD ADDRESS THE MERITS

EVEN

IF

IT

CONCLUDES

THAT

THE

PLAINTIFFS FAILED TO MAKE A “CLEAR

SHOWING” OF STANDING

If the Court concludes that the plaintiffs failed to

make a “clear showing” of standing to justify a preliminary injunction, it should go on to address the merits and

affirm the Sixth Circuit’s refusal to subject SB 1 to

heightened scrutiny. Although federal courts are forbidden to “hypothesize” Article III standing “for the pur-

25. See Whole Woman’s Health I, 141 S. Ct. at 2495 (“[F]ederal

courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”); Arizona, 40 F.4th at 395–96

(Sutton, C.J., concurring) (“A valid Article III remedy ‘operate[s] with respect to specific parties,’ not with respect to a law

‘in the abstract.’ ” (quoting California v. Texas, 593 U.S. 659, 672

(2021)).

26. See Arizona, 40 F.4th at 395–96 (Sutton, C.J., concurring)

(“[W]e do not remove — ‘erase’ — from legislative codes unconstitutional provisions.”).

22

pose of deciding the merits,”27 the Court would not violate the ban on hypothetical jurisdiction by affirming the

court of appeals on the additional ground that the plaintiffs failed to make a “clear showing” of a constitutional

violation.

First. This Court is not being asked to definitively

resolve whether the district court has subject-matter jurisdiction over the lawsuit. The Court is determining only whether the plaintiffs made a sufficiently “clear showing” of standing to support a preliminary injunction. A

negative answer does not deprive this Court or the district court of jurisdiction; it means only that the preliminary injunction should be vacated because it was unsupported by sufficient evidence of redressability at this

stage of the litigation. It remains possible that the plaintiffs will prove redressability on remand, perhaps by

presenting testimony from providers in Tennessee that

unequivocally declare that they will offer the services

outlawed by SB 1 despite the ongoing risk of lawsuits.

Pet. App. 53a (inviting the parties to “introduce evidence” on remand “about whether any of the plaintiff

doctors plan to offer these treatments in the future if

they succeed on these constitutional claims.”). And the

federal judiciary will retain jurisdiction over the case until those final determinations are made.

Second. A court does not need to assure itself that

subject-matter jurisdiction exists before it denies or vacates a preliminary injunction. A court does need to assure itself that subject-matter jurisdiction exists before

27. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999).

23

entering final judgment (or directing entry of judgment)

for the plaintiff or defendant. But a motion for preliminary injunction is decided in a preliminary posture —

before the parties have fully developed the factual record

on the jurisdictional questions — and the court’s task is

to resolve only whether the plaintiffs have made a preliminary showing of standing based on the factual record as it currently exists. There is nothing wrong with a

federal district court (or an appellate court) assuming for

the sake of argument that the plaintiffs made a “clear

showing” of standing yet denying (or vacating) a preliminary injunction because the plaintiffs failed to show likely success on the merits. And there is nothing wrong

with a federal district court (or appellate court) addressing the merits of the case after determining that the

plaintiffs failed to make a “clear showing” of Article III

standing at the preliminary-injunction stage. None of

this violates Steel Co. because no court is entering judgment (or directing entry of judgment) without first assuring that it has jurisdiction to do so. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998)

(denying the power to “decide the cause of action before

resolving Article III jurisdiction”).

Finally. Dr. Lacy indisputably has Article III standing to sue over SB 1. And although Dr. Lacy lacks thirdparty standing to assert any of the constitutional claims,

the prudential-standing doctrines are not jurisdictional.

See Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 126 (2014) (“ ‘[P]rudential’ . . . standing [is] a doctrine not derived from Article III . . . .”); VR

Acquisitions, LLC v. Wasatch County, 853 F.3d 1142,

24

1146 n.4 (10th Cir. 2017) (“[P]rudential standing . . . isn’t

jurisdictional”); id. (citing authorities); David P. Currie,

Misunderstanding Standing, 1981 Sup. Ct. Rev. 41. So

there is not even a possible violation of Steel Co. if this

Court weighs in on the merits of the Tennessee statute.

It also would further judicial economy for the Court

to resolve the constitutional and remedial issues now. If

this Court were to affirm the court of appeals’ vacatur of

the preliminary injunction solely on the ground that the

plaintiffs failed to make a “clear showing” of standing, it

would still remain possible for plaintiffs to establish

standing on remand by supplementing the record. Pet.

App. 53a. Then the plaintiffs would ask for (and likely

obtain) a new preliminary injunction from the district

court, and the parties will be back before this Court litigating the same merits issues that they have already

briefed and argued.

This Court should also rule on the merits to provide

much needed guidance and assurance to state legislatures who are considering laws similar to SB 1. It is crucial for legislators to know whether these laws are constitutional or, if they are constitutionally problematic,

what needs to be done to fix them.

IV. THE DISTRICT COURT’S DECISION TO AWARD

STATEWIDE RELIEF WAS INDEFENSIBLE

The most jarring aspect of the district court’s ruling

was its decision to extend relief beyond the named plaintiffs and enjoin the defendants from enforcing the disputed statutes against anyone. Pet. App. 212a–216a. But

this lawsuit was not brought as a class action, and the

plaintiffs lack Article III standing to assert the rights of

25

nonparties. The district court was therefore obligated to

limit its remedy to the named plaintiffs and the providers who treat them. See Doran v. Salem Inn, Inc., 422

U.S. 922, 931 (1975) (“[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the

particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.”).

The district court offered two reasons for disregarding these limits on the judicial power, but neither of

them holds water. The district court first claimed that “a

state-wide injunction of SB1 is necessary to redress

Plaintiffs’ injuries” because “it is far-fetched that

healthcare providers in Tennessee would continue care

specifically for Minor Plaintiffs when they cannot do so

for any other individual to whom SB1 applies.” Pet. App.

212a. But the district court cited no evidence to support

this claim — and the plaintiffs did not provide any. All

that the district court cited was a bald assertion in the

plaintiffs’ reply brief that says: “Permitting a provider

such as VUMC to treat three patients out of hundreds to

whom it previously offered care is hardly a guarantee

such treatment will resume.” Pls.’ Reply in Support of

Mot. for Prelim. Inj., L.W. v. Skrmetti, No. 3:23-cv-00376

(M.D. Tenn.), ECF No. 146, at 12 (cited at Pet. App.

212a). That won’t cut it. Adults also receive hormone

therapy at Vanderbilt University Medical Center — a

fact that the district court appears oblivious to.28 But

28. See Pinson Decl. ¶ 7 (J.A. 269) (“VUMC reviewed the Act and

determined that on and after the Effective Date it could no

(continued…)

26

more importantly, the burden was on the plaintiffs to

make a “clear showing” that statewide relief is necessary

to redress their injuries. See section I, supra. An ipse

dixit is the antithesis of a clear showing, and the plaintiffs needed to produce declarations from VUMC personnel showing that they would provide hormone therapy to the plaintiffs only if statewide relief were granted.

The district court’s second reason for flouting Doran

is even more off base: It claimed it could award statewide

relief and convert this lawsuit into a de facto class action

because “SB1 is most likely unconstitutional on its face.”

Pet. App. 213a. But the district court had no jurisdiction

to pronounce SB 1 “unconstitutional on its face” because

it admits that the plaintiffs lack standing to litigate SB

1’s ban on transgender surgeries,29 and the plaintiffs are

not challenging and cannot challenge SB 1’s private

cause of action in this pre-enforcement lawsuit. See

Whole Woman’s Health II, 595 U.S. at 39–40. The district court severed SB 1’s transgender-surgery ban and

longer offer any Hormone Therapy to minor patients.” (emphasis added)).

29. Pet. App. 139a (“Plaintiffs do not have standing to challenge

SB1’s ban on ‘surgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being’ when the

purpose of such procedures is to ‘enable a minor to identify with,

or live as, a purported identity inconsistent with the minor’s sex’

or to treat ‘purported discomfort or distress from a discordance

between the minor’s sex and asserted identity.’ Tenn. Code § 6833-103(a)(1)(A)–(B) (Pet. App. 301a); Tenn. Code § 68-33102(5)(A)–(B) (Pet. App. 300a). Accordingly, any relief provided

Plaintiff pursuant to the Motion will not impact SB1’s ban on

such surgeries.”).

27

private cause of action and excluded them from the scope

of its ruling;30 it cannot turn around after doing this and

declare that “SB 1 is likely unconstitutional in all of its

applications.” Pet. App. 216a.

It is also a non sequitur to claim that a court can issue

a universal remedy that protects non-parties to the litigation whenever it thinks a statute is “unconstitutional

on its face.” Pet. App. 213a. The holdings of Doran and

Califano apply regardless of whether a statute is unconstitutional “on its face” or only with respect to some of its

provisions or applications. And a plaintiff’s entitlement

to a universal or statewide remedy has nothing to do

with whether the challenged statute is unconstitutional

across the board, or whether it has discrete provisions or

applications that can be severed and preserved. Even

when a plaintiff demonstrates that a statute is unconstitutional in all its applications, a district court still cannot

enjoin enforcement against non-parties unless it has certified a plaintiff class or unless the plaintiff has shown

that broader relief is needed to redress its injuries. See

Califano, 442 U.S. at 702 (“[I]njunctive relief should be

no more burdensome to the defendant than necessary to

provide complete relief to the plaintiffs.” (emphasis added)).

The district court appears to believe that a finding of

“facial” unconstitutionality means that a court can pre30. Pet. App. 138a–139a (“[T]he Court construes Plaintiffs’ requested relief as an injunction to enjoin all provisions of SB1, except

the private right of action codified at § 68-33-105.”); Pet. App.

139a (“[A]ny relief provided Plaintiff pursuant to the Motion will

not impact SB1’s ban on such surgeries.”).

28

tend as though SB 1 has been formally revoked, and that

it can therefore enjoin state officials from enforcing the

statute against anybody. See Speet v. Schuette, 726 F.3d

867, 871 (6th Cir. 2013) (falsely claiming that “[a] facial

challenge to a law’s constitutionality is an effort . . . ‘to

take the law off the books completely.’ ” (citation omitted)). But courts resolve cases or controversies between

named litigants. They have no power to act directly on

legislation,31 and they cannot convert lawsuits into de

facto class actions simply by declaring a challenged statute “unconstitutional on its face.” See United States v.

National Treasury Employees Union, 513 U.S. 454,

477–78 (1995) (“[W]e neither want nor need to provide

relief to nonparties when a narrower remedy will fully

protect the litigants”).

31. See Whole Woman’s Health I, 141 S. Ct. at 2495 (“[F]ederal

courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”); Arizona, 40 F.4th at 396

(Sutton, C.J., concurring) (“[W]e do not remove — ‘erase’ —

from legislative codes unconstitutional provisions.”).

29

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

GENE P. HAMILTON

America First Legal Foundation

611 Pennsylvania Ave SE #231

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

October 11, 2024

JONATHAN F. MITCHELL

Counsel of Record

Mitchell Law PLLC

111 Congress Avenue

Suite 400

Austin, Texas 78701

(512) 686-3940

jonathan@mitchell.law