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

Supreme Court briefOct 15, 2024

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No. 23-477

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

JONATHAN SKRMETTI, ATTORNEY GENERAL AND REPORTER

FOR TENNESSEE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE GOVERNOR OF TEXAS AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

GREG ABBOTT

Governor of Texas

JAMES P. SULLIVAN

General Counsel

Counsel of Record

JASON BRAMOW

Assistant General Counsel

OFFICE OF THE GOVERNOR

P.O. Box 12428

Austin, Texas 78711

James.Sullivan@gov.texas.gov

(512) 936-3306

TAB LE O F C O NT E N TS

Page

Interest of Amicus Curiae ........................................ 1

Summary of Argument ............................................. 1

Argument .................................................................. 3

I. If the Federal Government Has Standing

to Pursue Constitutional Claims on Behalf

of Its Citizens, then So Do State

Governments .................................................. 3

A. The same rules must apply to both sets

of sovereigns when standing in the

shoes of their citizens. ............................... 3

B. This Court must address the issue

because the United States is the only

litigant before this Court on writ of

certiorari. .................................................. 5

Conclusion ................................................................ 7

TAB LE O F AU T H OR ITI E S

Page(s)

Cases:

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .............................................. 6

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ........................................ 5

Dep’t of Educ. v. Brown,

600 U.S. 551 (2023) ............................................ 5

Diamond v. Charles,

476 U.S. 54 (1986) .............................................. 6

(I)

FDA v. Alliance for Hippocratic Medicine,

602 U.S. 367 (2024) ............................................ 4

Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019) ............................................ 4

Georgia v. McCollum,

505 U.S. 42 (1992) .............................................. 3

Gill v. Whitford,

585 U.S. 48 (2018) .............................................. 4

Haaland v. Brackeen,

599 U.S. 255 (2023) .................................... 2, 3, 4

Maryland v. Louisiana,

451 U.S. 725 (1981) ............................................ 3

Missouri v. Illinois,

180 U.S. 208 (1901) ............................................ 3

Murthy v. Missouri,

144 S. Ct. 1972 (2024) ........................................ 4

New York v. New Jersey,

256 U.S. 296 (1921) ............................................ 3

Pennsylvania v. West Virginia,

263 U.S. 350 (1923) ............................................ 3

Rumsfeld v. FAIR, Inc.,

547 U.S. 47 (2006) .............................................. 5

Texas v. Loe,

692 S.W.3d 215 (Tex. 2024)................................ 1

The Siren,

74 U.S. 152 (1868) .............................................. 4

TransUnion LLC v. Ramirez,

594 U.S. 413, 423 (2021) .................................... 4

Wyoming v. Oklahoma,

502 U.S. 437 (1992) ............................................ 3

III

Constitutional Provisions, Statutes, and Rules:

TEX. CONST. art. IV:

§ 1 ....................................................................... 1

§ 9 ....................................................................... 1

§ 10 ..................................................................... 1

S.B. 14, 88th Leg., R.S. (Tex. 2023) ....................... 1

Miscellaneous:

L.W. v. Skrmetti, petition for cert. pending,

No. 23-466 (filed Nov. 1, 2023) ....................... 5, 6

United States v. Skrmetti, petition for cert.

granted, No. 23-477 (filed Nov. 6, 2023) ........ 5, 6

IN TER E ST O F A MI C U S C UR IA E

Greg Abbott is the Governor of Texas. 1 In his capacity as Chief Executive Officer of the State, the

Governor is authorized to recommend, execute, and

defend Texas’s laws. See TEX. CONST. art. IV, §§ 1, 9,

10. And Texas, like Tennessee, has enacted legislation to protect minors from the demonstrated and

permanent harms of so-called “gender affirming” procedures and services that push children further into

dysphoria rather than rescuing them from it. See S.B.

14, 88th Leg., R.S. (Tex. 2023). In June 2023, Governor Abbott signed Senate Bill 14 into law.

The Supreme Court of Texas recently upheld this

law against state constitutional challenges. See

Texas v. Loe, 692 S.W.3d 215, 223 (Tex. 2024). Whatever this Court says on the merits about this federal

constitutional challenge to Tennessee’s law may have

important implications for Texas’s law. Just as important, however, whatever this Court says about the

United States’s ability to seek relief on behalf of its

citizens should likewise have implications for Texas’s

authority to do the same thing on behalf of Texans.

S U M MA R Y O F AR G U ME N T

The federal government cannot have vaginoplasty

surgery to obtain a neovagina. But it nevertheless

appears before this Court as the party pressing an

Equal Protection Clause challenge to a Tennessee

statute that restricts availability of such procedures

for minors. “[The United States] has no equal

1 No counsel for any party authored this brief, in whole or in

part. No person or entity other than amicus or his counsel made

a monetary contribution to its preparation or submission.

(1)

protection rights of its own.” Haaland v. Brackeen,

599 U.S. 255, 294 (2023). So, it appears here as

parens patriae, insisting children in Tennessee must

be able to have their penises removed and inverted.

That may seem substantively perverse, but it is not

procedurally unsound.

Historically, this Court has permitted sovereign

governments to press claims on behalf of citizens

seeking their aggregate well-being in the face of statutes that conflict with the Constitution. Despite recent statements by this Court cutting back on States’

ability to seek parens patriae relief, there is no basis

to treat federal and state sovereigns differently. Such

dissimilar treatment would not only be inconsistent

with countless other doctrines that apply equally to

federal and state sovereigns. It would also pervert

the premise of parens patriae standing—where the

federal government is not even seeking the well-being of its citizens in the first place.

This Court cannot duck the question. At least one

party invoking the Court’s jurisdiction must have

standing for the relief sought. And because this Court

granted only the United States’s petition—and not

the petition filed by the private parties in this case—

the federal government is the only party seeking relief here. The Court should therefore take this opportunity to clarify that federal and state governments

alike may stand in the shoes of their citizens.

AR GU M E NT

I. If the Federal Government Has Standing to

Pursue Constitutional Claims on Behalf of

Its Citizens, then So Do State Governments.

A. The same rules must apply to both sets of

sovereigns when standing in the shoes of

their citizens.

Historically, sovereign governments, including

the States that make up our Union, have had the authority to assert claims on behalf of their citizens—

even against other sovereigns. See, e.g., Missouri v.

Illinois, 180 U.S. 208 (1901); New York v. New Jersey,

256 U.S. 296 (1921); Pennsylvania v. West Virginia,

263 U.S. 350 (1923); Maryland v. Louisiana, 451 U.S.

725 (1981); Wyoming v. Oklahoma, 502 U.S. 437

(1992). Indeed, this Court has observed that “[a]s the

representative of all its citizens, the State is the logical and proper party to assert the invasion of the

constitutional rights” of its citizens. Georgia v.

McCollum, 505 U.S. 42, 56 (1992).

Just last year, however, this Court appeared to

reverse course. In Haaland v. Brackeen, this Court

refused to entertain: (1) a sovereign government’s (2)

equal protection challenge (3) to a statute (4) on behalf of its citizens. 599 U.S. at 294–95. This Court

briefly concluded that Texas did not have parens patriae standing to claim that a federal statute violated

the Constitution. Why? Because Texas “has no equal

protection rights of its own.” Id. at 294. Consider,

however, what the Court has before it today: (1) a

sovereign government’s (2) equal protection challenge (3) to a statute (4) on behalf of its citizens. Under Brackeen, that would seem to be a problem

because the United States, too, “has no equal protection rights of its own.” Id. at 294.

What could possibly justify treating this case differently? The Brackeen Court did not say, though it

suggested States might be subject to an asymmetrical parens patriae rule when suing the federal government. Id. at 295 n.11. But that would make little

sense. After all, standing doctrine at its core aims to

assess whether the plaintiff—i.e., the party invoking

the federal court’s jurisdiction—has the requisite

“personal stake” in the dispute. See, e.g., Murthy v.

Missouri, 144 S. Ct. 1972, 1985–86 (2024); FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 379–

80 (2024); TransUnion LLC v. Ramirez, 594 U.S. 413,

423 (2021); Gill v. Whitford, 585 U.S. 48, 54 (2018).

There is simply no basis to carve out a good-for-mebut-not-for-thee rule of standing that turns on who

the defendant is.

Inventing such an asymmetrical rule would not

only distort the doctrine of standing and its focus on

plaintiffs. It would also distort countless other doctrines that treat federal and state governments similarly when acting as sovereigns. For example, federal and state governments alike are entitled to sovereign immunity in federal court. Compare The Siren, 74 U.S. 152 (1868) (federal), with Franchise Tax

Bd. of Cal. v. Hyatt, 587 U.S. 230 (2019) (state).

If all this doctrinal disruption were not enough, a

healthy dose of common sense is in order. Obviously,

the United States and the States arrayed behind

Tennessee have differing views of where the public

good lies here. Texas, like Tennessee, believes that

subjecting children to experimental surgical and hormonal treatments that increase suicidal ideation and

put them on pathways of care that could make them

infertile for the rest of their lives is not in the public

interest. The federal government should not be able

to invoke the parens patriae doctrine like a talisman,

at least not where its own position so manifestly

harms the public interest.

At the end of the day, if the Constitution really

does eschew “ideological plaintiffs” who “cannot ride

on someone else’s injury,” Biden v. Nebraska, 143

S. Ct. 2355, 2385, 2386 (2023) (Kagan, J., dissenting), that objection must apply to both federal and

state governments or to neither of them.

B. This Court must address the issue

because the United States is the only

litigant before this Court on writ of

certiorari.

In other cases, this Court has granted and consolidated petitions from both public and private litigants—as it did in the student-loan cases. See, e.g.,

Dep’t of Educ. v. Brown, 600 U.S. 551 (2023). Doing

so allows one party, who may not otherwise have

standing, to benefit from the standing enjoyed by another. Biden, 143 S. Ct. at 2365 (citing Rumsfeld v.

FAIR, Inc., 547 U.S. 47, 52 n.2 (2006)). For whatever

reason, this Court has not done that here. That has

important consequences for this case.

Following the Sixth Circuit’s decision vacating

the district court’s preliminary injunction, the private petitioners and the United States as intervenor

filed separate certiorari petitions with this Court.

L.W. v. Skrmetti, petition for cert. pending, No. 23466 (filed Nov. 1, 2023); United States v. Skrmetti,

petition for cert. granted, No. 23-477 (filed Nov. 6,

2023). This Court subsequently granted the United

States’s petition in the instant case but, critically,

the private petitioners’ petition remains pending. Id.

This procedural posture leaves the United States

as the only party that seeks to invoke the Court’s appellate jurisdiction. And, as this Court has routinely

recognized, that places the burden on the United

States to show that it has Article III standing. See

Arizonans for Official English v. Arizona, 520 U.S.

43, 64 (1997) (“The standing Article III requires must

be met by persons seeking appellate review, just as it

must be met by persons appearing in courts of first

instance.”); see also Diamond v. Charles, 476 U.S. 54,

68 (1986) (“[A]n intervenor’s right to continue a suit

in the absence of the party on whose side intervention was permitted is contingent upon a showing by

the intervenor that he fulfills the requirements of

Art. III.”).

Because that showing is contingent upon the

United States’s role as a representative of its citizens, this Court must address why the United States

enjoys that power while the States do not.

C O NC L U SI O N

The judgment of the court of appeals should be affirmed.

Respectfully submitted.