Amicus Curiae Brief — Ohio, et al., Petitioners v. Environmental Protection Agency, et al.

Nos. 24-7, 24-13

In the

Supreme Court of the United States

DIAMOND ALTERNATIVE ENERGY, LLC, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.

OHIO, et al.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF AMICI CURIAE ORGANIZATIONS

COMMITTED TO CONSTITUTIONAL

GOVERNMENT IN SUPPORT OF CERTIORARI

Riddhi Dasgupta

Counsel of Record

Taft Stettinius & Hollister LLP

200 Massachusetts Avenue NW, Suite 500

Washington, DC 20001

(202) 664-1564

SDasgupta@taftlaw.com

Counsel for Amici Curiae

116959

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

The questions presented are:

1. Whether a party may establish the redressability

component of Article III standing by relying on the

coercive and predictable effects of regulation on third

parties.

2. Whether EPA’s preemption waiver for California’s

greenhouse-gas emission standards and zero-emissionvehicle mandate is unlawful.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

This Court’s Time-Honored Jurisprudence

Ensconces the Equality of the States . . . . . . . . . 3

II. Founding-Era History Supports the

Equality Principle . . . . . . . . . . . . . . . . . . . . . . . . 15

III. Equality of the States is a Constitutional

Mandate that the Court Should Apply Here . . 21

IV. The Equality Principle Requires that

this EPA Waiver be Invalidated . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Barney v. Keokuk,

94 U.S. (4 Otto) 324 (1876) . . . . . . . . . . . . . . . . . . . . . . 8

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Coyle v. Smith,

221 U.S. 559 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13

Escanaba & Lake Michigan Trans. Co. v.

City of Chicago,

107 U.S. 678 (No. 1057) . . . . . . . . . . . . . . . . . . 7, 8, 9, 13

Franchise Tax Board of Calif. v. Hyatt,

139 S. Ct. 1485 (2019) . . . . . . . . . . . . . . . . . . . . . . 21, 22

Hampton v. Mow Sun Wong,

426 U.S. 88 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

Ill. Cent. R.R. v. Illinois,

146 U.S. 387 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

INS v. Chaddha,

462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Kansas v. Colorado,

206 U.S. 46 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . 24

Knight v. United States Land Assn.,

142 U.S. 161 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Mayor of Mobile v. Eslava,

41 U.S. (16 Pet.) 234 (1842) . . . . . . . . . . . . . . . . . . . . . . 6

Nevada v. Hall,

440 U.S. 410 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

New Jersey v. Delaware,

291 U.S. 361 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Northwest Austin Municipal Util. Dist.

No. One v. Holder,

557 U.S. 193 (2009) . . . . . . . . . . . . . . . . . . . . . 10, 11, 12

Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. 421 (1855) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Permoli v. Mun. No. 1 of New Orleans,

44 U.S. (3 How.) 589 (1845) . . . . . . . . . . . . . . . . . . . 7, 8

Pollard’s Lessee v. Hagan,

44 U.S. (3 How.) 212 (1845) . . . . . . . . . . . . . . . . . . . . . . 6

v

Cited Authorities

Page

PPL Montana, LLC v. Montana,

565 U.S. 576 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Principality of Monaco v. Mississippi,

292 U.S. 313 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Railway Express Agency, Inc. v. New York,

336 U.S. 106 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Shelby County, Ala. v. Holder,

570 U.S. 529 (2013) . . . . . . . . . . . . . . 3, 4, 10, 11, 12, 24

Shively v. Bowlby,

152 U.S. 1 (1894) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Nichols,

784 F.3d 666 (CA10 2015) . . . . . . . . . . . . . . . . . . . . . . 23

Withers v. Buckley,

61 U.S. (20 How.) 84 (1857) . . . . . . . . . . . . . . . . . . . 6, 17

CONSTITUTIONAL PROVISIONS

U.S. Const. Amdt. X . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15

U.S. Const. Amdt. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTES AND OTHER AUTHORITIES

34 A nna ls of C ong . 1230 (1819) (statement

of Rep. Louis McLane) . . . . . . . . . . . . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

35 A nnals of Cong. 397 (1820) . . . . . . . . . . . . . . . . . 17, 18

35 A nnals of Cong. 400 (1820) . . . . . . . . . . . . . . . . . . . . 17

41 Annals of Cong. 547 (1824) . . . . . . . . . . . . . . . . . . 15, 16

A. Pearce Higgins, Preface, William Edward

H a ll , A T reatise on I nternationa l L aw

(7th ed. 1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Advice to the Pr ivileged Orders, in T h e

Political Writings of Joel Barlow 3 (1796) . . . . . 16

B r a d f o r d R . C l a r k , Fe d e r a l C o m m o n

La w: A Str u c tur a l Re in t e r p r e t a ti o n ,

144 U. Pa. L. Rev. 1245 (1996) . . . . . . . . . . . . . . . . . . 17

David A. Dana, Democratizing the Law of Federal

Preemption, 102 Nw. U. L. Rev. 507 (2008) . . . . . . . 10

M a r k W. J a n i s , A n I n t r o d u c t i o n t o

International Law 50–51 (1988) . . . . . . . . . . . . . . . 17

Michael Morley, Note: The Law of Nations and

the Offenses Clause of the Constitution: A

Defense of Federalism, 112 Yale L.J. 109 (2002) . . . 16

Northwest Ordinance, 1 Stat. 50 (1789) . . . . . . . . . . . . . . 8

Peter Onuf & Nicholas Onuf, Federal Union,

M odern World : T he L aw of Nations in

a n A ge of R evolu tions 1776 -1814 (1993)

[Onuf and Onuf] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

Sonia Sotomayor, Note, Statehood and the

Equal Footing Doctrine: The Case for Puerto

Rican Seabed Rights, 88 Yale L.J. 825 (1979) . . . . . 3

5 The Debates in the Several State Conventions

on the A doption of the Federal Constitution

471 (Jonathan Elliot ed., J.B. Lippincott

& Co. 2d ed. 1891) [“Elliot’s Debates”] . . . . . . . . . 19

The Federalist No. 32, at 20 0 (A lexander

Hamilton) (Jacob E. Cooke ed., 1961) . . . . . . . . . . . . 15

T h e L aw of N a t ions bk. 2 , ch. 111, § 36

(London ed. 1797) (1758) [“Vattel”]) . . . . . . . . . . . . 18

3 T he R ecords of the F ederal C onvention

of 1787 (Max Farrand ed., 1911) . . . . . . . . . . . . . . . . 19

1 The Republic of Letters: The Correspondence

Between Thomas Jefferson and James Madison

1776-1826 (James Morton Smith ed., 1st ed. 1995)

[“Jefferson—Madison Correspondence”] . . . . . . . 20

Thomas B. Colby, In Defense of the Equal

Sovereignty Principle, 65 D uke L.J. 1087

(2016) . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9, 10, 13, 14, 19

Thomas H. Lee, Making Sense of the Eleventh

Amendment: International Law and State

Sovereignty, 96 Nw. U. L. Rev. 1027 (2002) . . . . . . . 18

1

INTEREST OF AMICI CURIAE1

This brief is filed on behalf of 23 organizations

committed to our constitutional system of government.

The amici are:

• American Commitment

• American Energy Institute

• Americans for Limited Government

• Americans for Tax Reform

• Association of Mature American Citizens

(“AMAC”) Action

• C3 Solutions

• Caesar Rodney Institute

• California Policy Center

• Cardinal Institute for West Virginia Policy, Inc.

• Center for Individual Freedom

• Center of the American Experiment

1. Amici state that no counsel for a party authored this brief

in whole or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amici or their counsel made a

monetary contribution to the preparation or submission of this

brief.

2

• Committee for a Constructive Tomorrow

• Competitive Enterprise Institute

• Eagle Forum

• Energy & Environment Legal

(“E&E Legal”) Institute

• Frontiers of Freedom

• Fueling California

• Independent Women’s Law Center

• Institute for Energy Research

• John Locke Foundation

• Mackinac Center for Public Policy

• Maine Policy Institute

• Rio Grande Foundation

SUMMARY OF ARGUMENT

The U.S. Environmental Protection Agency (“EPA”)

rescinded The Safer Affordable Fuel Efficient Vehicles

Rule Part One: One National Program (“SAFE I”)

rule and reinstated a waiver of Clean Air Act (“CAA”)

preemption for California’s greenhouse gas (“GHG”)

standards and Zero Emission Vehicle (“ZEV”) sales

3

mandate. California is being singled out, to the detriment

of other States, for preferential treatment.

T hat prefer ment v iolat es the Const itut ion’s

requirement that the federal government must treat

states equally unless there is a sufficient justification to do

otherwise. This Court’s jurisprudence so ensconcing has

a time-honored pedigree. It did not become particularly

controversial until Shelby County, Ala. v. Holder was

decided in 2013. 570 U.S. 529. Over two centuries, this

Court’s jurisprudence has evolved from equal footing to

equal sovereignty. All the while, equality of the states was

the lodestar guiding this Court’s odyssey. This case gives

the Court an occasion to reaffirm that lodestar.

ARGUMENT

I.

This Cour t’s Time -Honored Jurispr udence

Ensconces the Equality of the States. 2

Under our Constitution, the federal government

must treat the states equally. See Shelby County, supra.

Treating some States or their subdivisions better than

others, for no good reason at that, is perfidious to the

federalism that is at the heart of our Constitution. At the

heart of this principle is the constitutionally-recognized

“union of political equals.” Sonia Sotomayor, Note,

Statehood and the Equal Footing Doctrine: The Case for

Puerto Rican Seabed Rights, 88 Yale L.J. 825, 835 (1979)

(quoting Case v. Toftus, 39 F. 730, 732 (C.C.D. Or. 1889)).

2. Amici leave it to others to discuss the issue of standing

that Industry Petitioners raise. See Diamond Alternative Energy,

LLC, et al. v. EPA, No. 24-7, O.T. 2024, I.

4

That is why the Court repeatedly has asserted that “the

States in the Union are coequal sovereigns under the

Constitution.” PPL Montana, LLC v. Montana, 565 U.S.

576, 590–91 (2012).

In thus favoring California over her sister states, the

EPA has violated the Constitution’s equality principle

without any plausible justification whatsoever, much less

the sufficient justification that the Constitution demands.

See Shelby County, 570 U.S. at 542. As Petitioners have

articulated before the Court of Appeals, the EPA never

has had a good factual reason for doing so and many legal

reasons to refrain from doing so. See generally Pet. 26–37;

Ohio Br. and Industry Pet’rs Br., Ohio v. EPA, No. 221081 (CADC). The EPA should not be allowed to disobey

the Constitution’s equality-of-the-states instruction; this

Court’s precedents; and the careful balance struck in

favor of states’ equality during the original Constitution’s

ratification. The parties’ arguments should be evaluated

in light of these background constitutional principles.

While Shelby County is the Court’s latest decision

supporting the equality-of-the-states principle, the Court

began this journey long ago with the equal-footing cases.

The Court then had to grapple with the equal-sovereignty

cases. But the principle underlying all these cases is

that the federal government had to treat the states as

equals. This remarkable judicial odyssey is reminiscent

of T.S. Eliot’s bardic insight that “We shall not cease from

exploration/And the end of all our exploring/Will be to

arrive where we started/And know the place for the first

time.” Little Gidding (1942).

Famously, in Coyle v. Smith, this Court held that a

federal statutory provision dictating to Oklahoma where

5

its capital should be, once it became a State, violated

the State’s right to exercise its own sovereign authority

under the Federal Constitution. 221 U.S. 559 (1911). Since

Congress could not similarly control the destiny of existing

states, this Court held that the federal government could

not arbitrarily single out Oklahoma for special burdens

either. Id.

In so holding, this Court reasoned that “[t]his Union

was and is a union of States, equal in power, dignity and

authority.” Id. at 567 (emphasis added and cleaned up).

The historic office of equality among the states was a wellunderstood pillar of the Constitution, in cognizance of—

and in exchange for—which the states had surrendered

part of their sovereignty and entered the Union. See

Principality of Monaco v. Mississippi, 292 U.S. 313,

322–23 (1934). That was the bargained-for exchange,

without which the States might well have declined to join

the Union. Lest any of this be lost on the country, the

Coyle Court remarked: “[T]he constitutional equality

of the States is essential to the harmonious operation

of the scheme upon which the Republic was organized.

When that equality disappears[,] ... the Union will not be

the Union of the Constitution.” 221 U.S. at 580 (emphasis

added).

This Court also observed that a contrary approach

“would be” tantamount “to say[ing] that the Union,

through the power of Congress to admit new States,

might come to be a union of States unequal in power.”

Id. at 567. As a leading scholar in this field has noted, so

radical a restructuring of the constitutional design “would

violate the Constitution, which contemplates—indeed

necessitates—a union of equal sovereigns.” Thomas B.

6

Colby, In Defense of the Equal Sovereignty Principle,

65 Duke L.J. 1087, 1113 (2016) [Colby] (emphasis added).

So, in the words of Coyle, Congress could not “by the

imposition of conditions in an enabling act, deprive a new

State of any of those attributes essential to its equality in

dignity and power with other States.” 221 U.S. at 568, 570.

“Sovereign equality of the member states is presumptively

an essential, inherent structural feature of federalism

itself.” Colby 1137.

Almost 70 years before Coyle, in Pollard’s Lessee v.

Hagan (1845), this Court vigorously had recognized the

equality principle’s constitutional status. 44 U.S. (3 How.)

212, 223. And in cases predating Pollard’s Lessee, there

was language in at least some Supreme Court literature

confirming this position. See, e.g., Mayor of Mobile v.

Eslava, 41 U.S. (16 Pet.) 234, 258–59 (1842) (Catron,

J., concurring) (expressing view that new states have

“equal capacities of self-government with the old states,

and equal benefits under the constitution of the United

States”). Just over a decade after Pollard’s Lessee, the

Court recognized that the “perfect equality” of the states

regarding their “attributes as ... independent sovereign

Government[s]” “follow[s] ... from the language of the

Constitution.” Withers v. Buckley, 61 U.S. (20 How.) 84, 92

(1857) (cleaned up). The cases described thus far pertain

to equal sovereignty as far as entrance into statehood is

concerned.

That said, it would be inaccurate to suppose that

this Court’s equality decisions up until this point in

time were limited to the statehood-admittance context.

An antebellum case proves the point. When confronted

with a pre-Fourteenth Amendment situation where the

7

federal government was forcing a state to protect religious

freedom, this Court refused to tolerate that federal

coercion. See Permoli v. Mun. No. 1 of New Orleans,

44 U.S. (3 How.) 589 (1845). Prior to the Fourteenth

Amendment’s ratification, “[t]he Constitution [had made]

no provision for protecting the citizens of the respective

states in their religious liberties.” Id. at 609. But the

federal statute that effectively was Louisiana’s enabling

legislation had conditioned Louisiana’s statehood on its

protecting religious liberty. See id.

This Court’s opinion in Permoli commenced by

determining that the enabling act no longer governed

Louisiana once it became a State. See id. at 609–10. After

Louisiana entered the Union as a State, the Court said, it

became part of an union of equals. See id. Louisiana had

the same rights that her sister states did. See id. Congress,

this Court thus deduced, no longer had the authority to

control, in the same pre-statehood sense, what Louisiana

chose to enact and follow as its laws. See id. That meant

that Louisiana now was free to modify and even outright

alter its laws, including those very provisions that once

upon a time were a condition of its statehood. See id.

Consequently, this Court in Permoli left no doubt as to the

fact that the federal government is required to respect the

states’ sovereignty equally even when the United States is

exercising a legitimate federal power. And this principle

is applicable beyond the entrance-into-statehood context.

The Court continued to stay this course. In 1883, the

Court confronted Escanaba & Lake Michigan Trans. Co.

v. City of Chicago, a case concerning the free navigation

of waterways for commercial purposes. 107 U.S. 678.

No one doubted the federal government’s constitutional

8

authority over such maritime matters. The City of Chicago

had been authorized by the State of Illinois to build

several drawbridges over the Chicago River. But there

was a hitch. The federal enabling act had conditioned

Illinois’ statehood on letting navigation of the Chicago

River be “forever free.” Id. at 688 (quoting the Northwest

Ordinance, 1 Stat. 50 (1789)). Predictably, the shipping

company wanted the drawbridges brought down because

they were interfering with the riparian movement of

goods. See id. at 678–88.

The federal government and the shipping company

were unsuccessful before this Court. According to the

Court, the “forever free” restriction in the enabling act

“could not control the authority and powers of the State

after her admission.” Id. at 688–89. The reason was that

“[o]n her admission [the state] at once became entitled to

and possessed of all the rights of dominion and sovereignty

which belonged to the original States. [Illinois] was

admitted, and could be admitted, only on the same footing

with them.” Id. It followed that Illinois retained the

authority to regulate navigable waters that fell within

its own maritime borders, as part of its own “inherent

sovereignty.” Brief for Appellee at 3, 10, Escanaba, 107

U.S. 678 (No. 1057) (quoting Barney v. Keokuk, 94 U.S.

(4 Otto) 324, 338 (1876)).

Under Escanaba, although the federal government

could regulate navigable rivers, it could not accord Illinois

less sovereign authority to control her own maritime

borders than it extended to other states. 107 U.S. at

689. The Escanaba line of jurisprudence “stand[s] for

the proposition that Congress, regardless of the power

that it seeks to exercise, is constrained to respect the

9

constitutionally mandated sovereign equality of all of

the states.” Colby 1114 (emphasis added). The echoes of

Permoli are ubiquitous throughout the Court’s opinion

in Escanaba. A modern parallel would be that although

the government may establish and run schools, hospitals,

libraries, swimming pools, and other governmental

institutions, it may not treat people’s access to them—

and post-admittance enjoyment of them—unequally on

account of a constitutionally prohibited basis. Similarly,

this Court’s cases hold that treating states unequally is

presumptively unconstitutional—no matter when in the

course of a state’s statehood odyssey that differential

treatment is inflicted upon it.

Yet Escanaba did make a somewhat novel contribution

to this Court’s equality-of-the-states jurisprudence. That

decision applied the equality principle to matters beyond

just the traditional office of state sovereignty to (now)

equality of the states generally. 107 U.S. at 688–89. Its

scope and applicability were pervasive. In other words,

the Court’s equal-sovereignty jurisprudence now became

simply its equality-among-the-states jurisprudence. In

Escanaba, this Court therefore proclaimed: “Equality of

constitutional right and power is the condition of all the

States of the Union, old and new.” Id. The Court would

reaffirm this recognition within a few years, by saying:

“There can be no distinction between the several States of

the Union in the character of the jurisdiction, sovereignty

and dominion which they may possess and exercise over

persons and subjects within their respective limits.” Ill.

Cent. R.R. v. Illinois, 146 U.S. 387, 434 (1892).

According to Professor Thomas Colby, as it just cannot

be “the case that the states are sovereign only in the

10

areas in which they possess exclusive sovereignty under

the Tenth Amendment,” in the “many areas in which the

states and the federal government possess concurrent

sovereignty” the states deserve equal treatment. Colby

1115 (emphasis added). The dominant view in constitutional

law is that “[e]ach State stands on the same level with all

the rest.” Kansas v. Colorado, 206 U.S. 46, 97 (1907). It is

beyond cavil that the “standard federalism axiom that all

states are equal in value as quasi-sovereigns.” David A.

Dana, Democratizing the Law of Federal Preemption, 102

Nw. U. L. Rev. 507, 512–13 (2008). The party challenging

this prevailing presupposition carries a heavy burden of

demonstrating that federal treatment to the contrary has

an exceedingly persuasive justification.

Indeed, the equal-footing doctrine merely “is a

doctrinal reflection of a broader constitutional mandate”

of treating states equally. Colby 1124. After all, equality

of the states is the fons et origo of this jurisprudence.

Another manifestation is the equal-sovereignty principle.

It too is “a specific manifestation of a deep, fundamental,

and general principle that ‘the Constitution guarantees

sovereign equality to the states’—all of them.” Id. at 1124.

For its part, the equal-sovereignty principle “necessarily”

is “implied and guarant[e]ed by the very nature of the

Federal compact” that our Constitution ensconces as a

paramount principle of federalist governance. Withers,

61 U.S. (20 How.) at 93.

This line of cases culminated in Shelby County,

which is this Court’s most recent pronouncement on

this issue. First, though, a quick recap is in order. Four

Terms before Shelby County, this Court handed down

its decision in Northwest Austin Municipal Util. Dist.

11

No. One v. Holder, 557 U.S. 193 (2009). There, a Texas

municipality had wanted a bailout from the Voting Rights

Act’s (“VRA”) Section 5 requirement to have its election

law changes “precleared” by the federal Department of

Justice (“DOJ”). See id. at 200–01. This “preclearance”

requirement applied to only 9 states and several

municipalities—following a 1960s coverage formula. See

id.; DOJ: Jurisdictions previously covered by Section 5 at

the time of the Shelby County decision, www.justice.gov/

crt/jurisdictions-previously-covered-section-5.

In Northwest Austin, this Court granted all political

subdivisions the right to file a bailout suit. 557 U.S. at

211. The Court interpreted § 5 in light of “underlying

constitutional concerns,” which “compel[led] a broad[ ]

reading of the bailout provision.” Id. at 207. That is not

all. The Court articulated that § 5 “imposes substantial

federalism costs” and “differentiates between the

States, despite our historic tradition that all the States

enjoy equal sovereignty.” Id. at 202, 203 (cleaned up

and emphasis added). The Court further remarked that

“a departure from the fundamental principle of equal

sovereignty requires a showing that a statute’s disparate

geographic coverage is sufficiently related to the problem

that it targets.” Id. at 203. As a result, Northwest Austin

vindicated the time-honored equality principle.

Eventually, Shelby County came to the Court. There,

an Alabama municipality contended that the VRA’s

half-century-old coverage formula for preclearance was

unconstitutional in light of current conditions and needs.

570 U.S. at 536, 541–42, 553. This Court agreed. Indeed,

the Court’s opinion in Shelby County constituted a

straightforward application of its precedents. Beginning

12

with the premise that “[t]he [Fifteenth] Amendment is

not designed to punish for the past; its purpose is to

ensure a better future,” this Court recognized that the

federal government must at the very least “identify those

jurisdictions to be singled out on a basis that makes sense

in light of current conditions.” Id. at 553. This reasoning

hearkened back to Northwest Austin’s observation that

by 2013, “we [we]re ... a very different Nation” than we

had been in the 1960s, at least as far as racially-inflected

access to suffrage was concerned. 557 U.S. at 211; see also

id. at 202, 203.

The Court in Shelby County observed that “‘the [VRA]

imposes current burdens and must be justified by current

needs.’” 570 U.S. at 536 (quoting Northwest Austin, 557

U.S. at 203). In light of the constitutionally-mandated

equality of the states, that differential treatment of some

states and municipalities was unsupported by current

conditions, the Court ascertained. See id. Therefore, the

Court invalidated the VRA’s coverage formula. See id. at

544–45, 556.

Congress, cautioned this Court, “cannot rely simply

on the past” when it is striving to pave the way to the

future. Id. at 553. Being ossified in aspic in the 1960s

when devising a 21st century solution was inappropriate,

said this Court, when that reflection no longer reflects

current circumstances and triggers a clash with a state’s

constitutional prerogative. See id. Then, while invoking

its precedents, this Court reaffirmed the “‘fundamental

principle of equal sovereignty’ among the States.” Id.

at 544 (quoting Northwest Austin, 557 U.S. at 203). The

Constitution’s enduring equality-of-the-states principle

guided the Court’s constitutional calculus. See id.; see

13

also Knight v. United States Land Assn., 142 U.S. 161,

183 (1891); Shively v. Bowlby, 152 U.S. 1, 26–31 (1894).

As mentioned earlier, “even when Congress operates

within its legitimate spheres of authority”—such as

admitting new states—the federal government may “[ ]not

limit or remove the sovereignty of some [existing or future]

states, but not others.” Colby 1121. Congress, therefore,

may not “preclude only one state (or several states) from

[pursuing some course of action] while allowing other

states to do so.” Id. at 1122. That would debase the rights,

dignity, status, agency, and sovereignty of the injured

states “in an impermissibly discriminatory manner,

depriving [them] of equal sovereignty” and equality

generally “with [their] peers.” Escanaba, 107 U.S. at 688;

see also Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. 421, 433, 435 (1855).

As this Court insightfully has observed, equality of

the states is existential for them. See Coyle, 221 U.S. at

580. Sovereignty, as has been addressed, is an important

stick within the bundle of a state’s rights that the equality

principle protects—but that principle reaches well beyond

the core functions and duties of sovereignty. Rather, this

equality is absolutely essential for the states’ survival

as distinct political entities as well as for the protection

of their autonomy, agency, dignity, authority, status,

and of course sovereignty. See Colby 1138. If the federal

government gets to treat some of the states better

than it treats others, then the “regional diversity” that

federalism protects would be engulfed by antipathy and

“animosity” among the states. Id. at 1136–37. As a result,

“the central government, even when it operates only

within its legitimate spheres, will be controlled by certain

14

regional factions who will use its powers to discriminate

against and minimize the authority of the other regional

factions.” Id. The less powerful states would lose out in

such a conflict.

That disfavored possibility is also why Justice Robert

Jackson regarded the enforcement of equality as a most

vital defense against tyranny:

The framers of the Constitution knew, and we

should not forget today, that there is no more

effective practical guaranty against arbitrary

and unreasonable government than to require

that the principles of law which officials would

impose upon a minority be imposed generally.

Conversely, nothing opens the door to arbitrary

action so effectively as to allow those officials

to pick and choose only a few to whom they will

apply legislation and thus to escape the political

retribution that might be visited upon them if

larger numbers were affected.

Railway Express Agency, Inc. v. New York, 336 U.S. 106,

112–13 (1949) (concurring opinion) (emphasis added).

The aforementioned factionalism would defeat the

very purpose of having a “federation” like ours since

“[i]t would contravene efforts to achieve unity, and

it would fail to respect the integrity and the diverse

cultures of the weaker regional states.” Colby 1137.

Thus, the Constitution “compel[s]” the United States

“to respect and treat all member states—regardless of

their differences—as legitimate equal sovereigns.” Id. In

fact, the Tenth Amendment and the Constitution’s other

15

federalism provisions, not to mention the antecedent

understanding with which the States entered the Union,

would be rendered nugatory without an antidiscrimination

safeguard. Equality of the states, therefore, is an essential

predicate to our federalist Constitution.

II. Founding-Era History Supports the Equality

Principle.

There is robust historical support for the principle of

equality among the states. Even before our Constitution

was adopted, Alexander Hamilton had assured the People

of New York that the States will “clearly retain all the

rights of sovereignty which they before had and which

were not ... exclusively delegated to the United States.”

The Federalist No. 32, at 200 (Alexander Hamilton) (Jacob

E. Cooke ed., 1961) (emphasis added).

In that same Federalist number, Hamilton included

that “[t]he necessity of a concurrent jurisdiction in certain

cases results from the division of the sovereign power.”

Id. at 203. Breaking it down further, Hamilton explained:

“[T]he rule that all authorities, of which the States are

not explicitly divested in favour of the Union, remain with

them in full vigour, is not only a theoretical consequence

of that division, but is clearly admitted by the whole tenor

of the ... constitution.” Id.; see also Amdt. X, U.S. Const.

Equality of the states was a given in the constitutional

constellation.

National harmony and unity could not survive without

“this equality,” our early leaders believed. 41 Annals of

Cong. 547 (1824) (Representative John Holmes). “Equality

of power is essential to the existence of a State. It cannot

16

have less than the rest, and when it has, it ceases to be

a State.” Id. When every state has an equal stake in

the project of preserving the Union, the Nation itself is

bolstered by its legion of defenders working cooperatively

to fulfill its promise for all—on equal terms. The converse

is also true: When inequality of the states pervades the

zeitgeist, disunity and tension will reign.

Much of American history is fraught with this

expectation. In the earliest years of our Republic, the

pamphleteer Joel Barlow stated that “[t]he principle

of equality [among the States] guaranteed harmonious

union.” Peter Onuf & Nicholas Onuf, Federal Union,

Modern World: T he L aw of Nations in an A ge of

Revolutions 1776-1814, at 141 & n.48 (1993) [Onuf and

Onuf]. Barlow observed that “[a]mong the several states,

the governments are all equal in their force, and the people

are all equal in their rights.” Advice to the Privileged

Orders, in The Political Writings of Joel Barlow 3, 67

(1796). He reasoned that “[j]ust as the state constitutions

secured individual rights, the federal Constitution secured

the rights of states; these states—as self-governing

republics guaranteed against internal subversion and

external assault—were much more comprehensively,

substantially, and enduringly ‘equal’ than the states of

Europe could ever hope to be.” Onuf & Onuf 142.

Furthermore, the law of nations—derived from natural

law—too supports this view. Specifically, when “drafting

and interpreting the Constitution, both the Framers and

Founding-era judges were heavily influenced by certain

European scholars who believed the law of nations to be

intimately intertwined with natural law.” Michael Morley,

Note: The Law of Nations and the Offenses Clause of

17

the Constitution: A Defense of Federalism, 112 Yale L.J.

109, 122 (2002). To that end, the equality precepts that

influenced the Framers of our Constitution had an ancient

pedigree rooted in the law of nations. See id. at 122–23;

M ark W. Janis , A n I ntroduction to I nternational

Law 50–51 (1988); A. Pearce Higgins, Preface, William

Edward Hall, A Treatise on International Law, at xivxv (7th ed. 1917).

As this Court noted almost a century ago, “[w]hen

independence was achieved, the precepts to be obeyed . . .

were those of international law” (also known sometimes

as the “law of nations”). New Jersey v. Delaware, 291 U.S.

361, 378 (1934). And, of course, an essential predicate of

the law of nations was that all free nations were to be

afforded “perfect equality and absolute independence of

sovereigns.” Bradford R. Clark, Federal Common Law:

A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245,

1328 (1996). This makes sense because, as noted earlier,

when surrendering part of their “absolute independence

of sovereigns” in exchange for joining the Union, the

states did not somehow relinquish their right to “perfect

equality.” Id.; Withers, 61 U.S. at 92.

That understanding continued into the 19th century.

During Congress’ servitude debates, Senator Charles

Pinckney noted that “the Constitution recogni[z]es” the

“natural equality of States, ... not only because it does not

deny them, but presumes them to remain as they exist

by the law of nature and nations.” 35 A nnals of Cong.

400 (1820). He added: “Inequality in the sovereignty of

States is unnatural, and repugnant to all the principles of

[natural] law.” Id. Pinckney quoted Emmerich de Vattel’s

observation that “‘[n]ature has established a perfect

18

equality of rights between independent nations.”’ Id.

(quoting The Law of Nations bk. 2, ch. 111, § 36 (London

ed. 1797) (1758) [“Vattel”]).

Furthermore, Pinckney remarked that our “Union”

is “an equal Union between parties equally sovereign.” 35

Annals of Cong. 397 (1820); see also 34 A nnals of Cong.

1230 (1819) (statement of Rep. Louis McLane) (“It is of

the very essence of our Government, that all the States

composing the Union should have equal sovereignty. It

is the great principle on which the Union reposes—the

germ of its duration.”). Such “conceptualization of state

sovereignty in Vattel’s work” robustly influenced our

own Constitution’s federalist structure. Thomas H. Lee,

Making Sense of the Eleventh Amendment: International

Law and State Sovereignty, 96 Nw. U. L. Rev. 1027,

1064–65 (2002).

For his part, Vattel had argued that “nations

composed of men, and considered as so many free persons

living together in a state of nature, are naturally equal,

and inherit from nature the same obligations and rights.”

Prelim. § 18, Vattel, supra. “[A] small republic is no less

a sovereign state than the most powerful kingdom.” Id.

Senator Pinckney articulated that same principle: Our

Constitution “takes the States as it finds them, free and

sovereign alike by nature. ... It diminishes the individual

sovereignty of each, and transfers, what it subtracts, to

the Government which it creates: it takes from all alike,

and leaves them relatively to each other equal in sovereign

power.” 35 A nnals of Cong. 400 (1820) (statement).

Nor should this precept be particularly surprising.

Although “[t]he delegates to the Constitutional Convention

19

vehemently disagreed about which form of representation

was more fair and appropriate, ... they did not disagree

as to the antecedent assumption that the states were to

possess equal sovereignty.” Colby 1128. They were to

be equals. For example, Delawarean Gunning Bedford

declared: “That all the states at present are equally

sovereign and independent, has been asserted from every

quarter of this house.” 5 The Debates in the Several

State Conventions on the A doption of the Federal

Constitution 471 (Jonathan Elliot ed., J.B. Lippincott &

Co. 2d ed. 1891) [“Elliot ’s Debates”].

Of course, the small-state delegates fought for equal

state representation in Congress. A prominent supporter

of this view, William Patterson of New Jersey posited:

“A confederacy supposes sovereignty in the members

composing it, and sovereignty supposes equality.” 5 id. at

176. He observed that “every State in the Union as a State

possesses an equal Right to, and Share of, Sovereignty.”

3 The Records of the Federal Convention of 1787, at

613 (Max Farrand ed., 1911). Similarly, Luther Martin

of Maryland characterized “an equal vote in each state”

as indispensable to the “right of sovereignty.” 5 Elliot ’s

Debates, at 176. Martin deduced “that the states, like

individuals, were, in a state of nature; equally sovereign

and free.” Id. at 248.

Vigorous congressional debate ensued, with supporters

of proportional representation all the way also expressing

their views. See Colby 1130–32. In the end, the compromise

“effectuated both visions of equal sovereignty, one for each

congressional chamber.” Id. at 1131. The Senate, according

to James Madison, would “represent the States in their

political capacity, the other House will represent the

20

people of the States in their individual capacity.” 1 The

Republic of Letters: The Correspondence Between

Thomas Jefferson and James M adison 1776-1826, at 499

(James Morton Smith ed., 1st ed. 1995) [“Jefferson—

M adison Correspondence”] (emphases added). But the

winner all around was equality of the states because

“just as the people were to have equal sovereignty in their

individual capacity, the States in their political capacity

were to be equally sovereign.” Colby 1132 (cleaned up).

Madison himself championed this configuration to the

Virginia ratifying convention as “a government of a

federal nature, consisting of many coequal sovereignties.”

3 Elliot ’s Debates, at 381.

True, the House of Representatives does give the more

populous states a greater say than to the less populous

states in legislative proceedings but that treatment is

reflective of the Constitution’s concern for the people—

not a derogation from the rights of states qua states.

See Jefferson—M adison Correspondence, supra, at

499. A notable example of state equality comes from

the rights of states to cast one ballot each in the House

of Representatives whenever a contested Presidential

election ends up there. In light of the Founding era

history of state equality, this example supports the

ubiquitous application of that principle. As a result, the

Constitution contemplates no scenario in which a state,

in its constitutional capacity as a state, may receive

differential treatment.

As is evident, ubiquitous throughout the Founding

era were references to equality that venture beyond the

traditional tenets of sovereignty. Equality of the states

was recognized as a broad principle not limited to the

21

traditional definition of sovereignty. Where, as here, the

question involves the rights of the states in their political

capacities, equality of the states is the governing rule.

History, constitutional text and structure, and this Court’s

precedents, so require.

III. Equality of the States is a Constitutional Mandate

that the Court Should Apply Here.

Some have raised the concern that equality of the

states is not expressly spelled out in the Constitution. As

an initial matter, such “ahistorical literalism” contradicts

the Constitution’s original meaning and long-established

doctrine. Franchise Tax Board of Calif. v. Hyatt, 139

S. Ct. 1485 (2019) (cleaned up). Nor is this case that

general argument’s debut. Five Terms ago in Hyatt, this

Court overturned a four-decade-old precedent despite

being told that only “the structure of our Constitution”

favored the Court’s interpretation. See id. (overruling

Nevada v. Hall, 440 U.S. 410 (1979)); id. at 1502 (Breyer,

J., dissenting). There, the Court held that “the States’

sovereign immunity is a historically rooted principle

embedded in the text and structure of the Constitution.”

Id. at 1498–99. The Hyatt Court restored to the states

their right to avoid being sued in the courts of a sister state

without their consent. See id. at 1499. Second, here, unlike

in Hyatt, the Court would not even have to overturn any of

its decisions to vindicate the equality of the states—that

principle is the status quo.

Third, Hyatt made short work of the objection, also

floated here, about a principle’s not appearing in black

and white constitutional text. Hyatt answered that charge

by pointing out that “[t]here are many ... constitutional

22

doctrines that are not spelled out in the Constitution but

are nevertheless implicit in its structure and supported

by historical practice—including, for example, judicial

review; intergovernmental tax immunity; executive

privilege; executive immunity; and the President’s

removal power.” Id. at 1498–99 (cleaned up).

Another prominent example is a recent one. Just a

few weeks ago, the Court drew support from the very

nature and character of Article III in declaring ultra

vires Chevron’s deference to agency interpretations

of ambiguous statutes. See Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244 (2024) (overruling Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984)). Although the Court’s ostensible

basis for its decision in Loper Bright was the iconic

administrative law super-statute, the Administrative

Procedure Act (“APA”), the Court grounded its decision

in the federal courts’ duty, with respect to the original

meaning of Article III, to say what the law is—without

that candor’s being refracted through the Executive’s

lens. Id. at 2257–60. The APA was read in a manner

consistent with Article III. So the Court reasoned in Loper

Bright : “To ensure the steady, upright and impartial

administration of the laws, the Framers structured the

Constitution to allow judges to exercise that judgment

independent of influence from the political branches.” Id.

at 2257 (cleaned up).

These promises inherent in the Constitution’s

structure are so important because without them, the

Nation itself sooner or later would fall apart. It is for this

reason that the Court generally has not let erroneous

structural practices, even longstanding and commonplace

23

ones, prevent it from rectifying an egregious constitutional

wrong. See, e.g., INS v. Chaddha, 462 U.S. 919 (1983).

Equality of the states always has been a similarly

inviolable principle under our Constitution.

Concomitantly, the liberty secured by our Constitution

lies in its sacrosanct structure, which preserves the

channels and means of constitutional governance and the

boundaries that each layer of government must respect.

It prevents the accumulation of excessive governmental

power in any one entity. While the individual rights

guarantees of the Constitution involve certain rights,

there are many other non-constitutional rights and

liberties whose survival the structural Constitution

ensures. That is why Justice Gorsuch has observed that, in

the Framers’ view, meticulous care for the Constitution’s

structure was “essential to the preservation of the people’s

liberty.” United States v. Nichols, 784 F.3d 666, 670 (CA10

2015) (dissenting opinion). Without it, “the ability of an

individual or group to exercise arbitrary or absolute

power” would be difficult to “thwart.” Id.

IV. The Equality Principle Requires that this EPA

Waiver be Invalidated.

The agency, autonomy, dignity, authority, status, and

of course sovereignty of California’s sister states—the

very nature of being a state—seriously are undermined

by the federal government’s unjustified bias in California’s

favor. This EPA waiver irreparably has undermined

“the federal sovereign[’s]” constitutional duty to “govern

impartially.” Hampton v. Mow Sun Wong, 426 U.S. 88,

100 (1976). Nor has the EPA advanced even a plausible

justification for that special treatment. And the Court

24

would not have to micromanage federal-state interactions

if it were to do what two centuries of its cases have always

done.

This is not a case of California’s unique conditions

and needs warranting a special waiver. See Shelby

County, 570 U.S. at 536, 541–42. California is getting

this bonus not based on its own situation but rather

because of federal favoritism unrelated to neutral or

dispassionate considerations. That is the quintessence

of an irrational governmental action and it invites the

condemnation that the federal government is doling out

special benefits to those it happens to favor at the expense

of those who are out of favor. Mow Sun Wong, 426 U.S.

at 100. And California is getting this favor through the

EPA’s unreasoned departure from its prior position, thus

triggering the most searing scrutiny. See Kisor v. Wilkie,

139 S. Ct. 2400, 2418 (2019). Under no circumstances is

it convincing, much less exceedingly persuasive, for the

federal government to claim that its special waiver to

California honors the “perfect equality” of the states.

Withers, 61 U.S. at 92.

25

CONCLUSION

This Court should grant certiorari and reverse the

judgment of the United States Court of Appeals for the

District of Columbia Circuit.

Respectfully submitted,

Riddhi Dasgupta

Counsel of Record

Taft Stettinius & Hollister LLP

200 Massachusetts Avenue NW, Suite 500

Washington, DC 20001

(202) 664-1564

SDasgupta@taftlaw.com

Counsel for Amici Curiae