[00:00:00] Speaker 02: Case number 155309, state of West Virginia, ex frail Patrick Morrissey, appellant, the United States Department of Health and Human Services. [00:00:11] Speaker 02: Mr. Lin for the appellant, and Ms. [00:00:14] Speaker 02: Dennis Powell for the appellee. [00:00:20] Speaker 05: Good morning. [00:00:22] Speaker 01: Morning. [00:00:27] Speaker 01: Good morning and may it please the court. [00:00:29] Speaker 01: I'm Albert Lynn, Solicitor General for the State of West Virginia. [00:00:31] Speaker 01: I have reserved three minutes of my time for rebuttal. [00:00:36] Speaker 01: West Virginia has been injured in this case by the federal government's delegation to the state of the sole responsibility over the enforcement or non-enforcement of existing federal law. [00:00:49] Speaker 01: The burden on the state is similar to the burden suffered by any party or entity who has ever been told, quote, it's on you. [00:00:58] Speaker 01: For example, a nationwide law firm issues a rule that says no pets are allowed in the workplace. [00:01:04] Speaker 01: It then issues a second rule that says each office manager shall have the unilateral discretion to determine whether this pet rule applies within his or her office. [00:01:15] Speaker 01: That second rule imposes a burden, delegates to each office manager the unilateral responsibility to decide whether the pet rule applies. [00:01:26] Speaker 01: And that's a burden. [00:01:27] Speaker 01: It's a burden on that office manager who now has to take a position on whether pets are allowed in the workplace. [00:01:33] Speaker 01: A burden that did not exist before. [00:01:35] Speaker 04: But under your theory, wouldn't that burden have already been, well, in this case, the burden, so to speak, was already on the state from the moment that the Affordable Care Act was passed. [00:01:49] Speaker 01: No, Your Honor, the difference, we think, is if you had to take the pet example, if the law firm issues the rule and says, you have, office manager have the unilateral, or you have the discretion, however, if you don't enforce the pet rule, we shall enforce it. [00:02:06] Speaker 01: That's what the Affordable Care Act's regime was. [00:02:11] Speaker 01: The administrative fix essentially strikes through the federal government shall enforce, and it makes the law, if you can imagine hypothetical law that says, here is what is required as a matter of federal law. [00:02:24] Speaker 01: These types of insurance plans shall not be sold. [00:02:28] Speaker 01: A, paragraph B, the states have the discretion to decide whether or not these requirements will be enforced. [00:02:35] Speaker 05: You can just not enforce, though. [00:02:38] Speaker 01: We can just not enforce. [00:02:39] Speaker 01: That's true. [00:02:40] Speaker 01: But it's the delegation of that burden. [00:02:44] Speaker 01: It's the responsibility for making that choice that is the harm to us here. [00:02:48] Speaker 01: It didn't exist before under the statutory regime. [00:02:51] Speaker 03: Suppose the statute had provided no federal enforcement at all. [00:02:56] Speaker 03: It just delegated to the states the choice. [00:03:01] Speaker 01: And that, we think, is what's happened here. [00:03:03] Speaker 03: No, no, would you have standing to challenge if you had complete choice whether or not to enforce? [00:03:11] Speaker 03: No federal role at all? [00:03:12] Speaker 01: That's right. [00:03:13] Speaker 01: Yes, because we think that's the position that we're in right now. [00:03:17] Speaker 03: I know, but I'm trying to figure out whether you would have even had standing if the statute had provided that with no federal enforcement role at all. [00:03:26] Speaker 01: We think so, and we think it's very similar to the situation that was in Carter Cole, the 1936 case where the court decided that the legislative delegation was delegation in its most obnoxious form. [00:03:39] Speaker 01: And what happened there was that the federal government passed a law and had a lot of different provisions in it, but one particular provision said, [00:03:45] Speaker 01: that it gave the discretion to determine the maximum working hours and the minimum wage to the majority of the private coal producers and that whatever they determined would apply to the minority of private coal producers. [00:04:01] Speaker 01: That's, we think, a sort of analogous situation here, which is that the federal government has, and this isn't a situation, Your Honor, where they've said they've articulated a federal policy and encouraged us to enact some state law or not. [00:04:17] Speaker 01: Here, they have actually passed a federal law. [00:04:20] Speaker 01: There is a law on the books that says that these eight market requirements have to apply to every insurance plan that's sold. [00:04:28] Speaker 05: As to the state, it doesn't require the state to do anything, correct? [00:04:37] Speaker 01: As to the state, under the statute, it doesn't. [00:04:40] Speaker 01: It gives us the right of first refusal. [00:04:43] Speaker 05: Nor under the reg does it require the state to do anything. [00:04:46] Speaker 05: That doesn't mean you lose necessarily, but it's not a compulsion. [00:04:52] Speaker 01: True, right. [00:04:52] Speaker 01: It's not, for instance, like the situations in New York and Prince, where they actually said, do this one particular thing. [00:04:59] Speaker 03: You don't have any case really in point, do you? [00:05:04] Speaker 01: Well, the case that we have that's closest, we think, is the Carter Cole case, which involved delegation to a private entity. [00:05:09] Speaker 01: And it's sort of not clear whether the court decided standing there, because it's- That's my point. [00:05:15] Speaker 03: The court didn't even discuss standing. [00:05:19] Speaker 03: That's true, but it also- And we know, because the Supreme Court has made clear over and over again, if it doesn't discuss standing in a particular case, it's not precedent on standing. [00:05:30] Speaker 01: That's correct, Your Honor. [00:05:31] Speaker 01: It's not directly presidential, but again, if you look at this court's decision in Lamont... It's not presidential at all, is what they've said. [00:05:39] Speaker 01: Right, but this court has taken, you know, has looked at those decisions and has taken some meaning from them. [00:05:45] Speaker 01: And if you look at Lamont, where they found standing for the local law enforcement officers to allege state sovereign, or a harm to their sovereignty, this court looked at Prince and said, this is what the court held in Prince as a matter of the merits. [00:06:00] Speaker 01: And we think that it's sort of, you know, we can take from that, that of course these individual law enforcement officers would have standing. [00:06:07] Speaker 01: It's in that decision where this court has done that very thing. [00:06:11] Speaker 05: Let me ask you a different angle from the one you've presented. [00:06:14] Speaker 05: Suppose there's no state enforcement role, suppose federal drug laws and the federal government says we're not going to enforce certain federal drug laws. [00:06:23] Speaker 05: Does a state have standing to sue to compel the federal government to sue to enforce those federal drug laws because of the effects on the state? [00:06:32] Speaker 01: I think that's a different situation, Your Honor, because I think here there was, as you said, in your hypothetical, there's no formal state role. [00:06:39] Speaker 01: Here, the statute actually says, here's the role that the states play. [00:06:43] Speaker 01: The states may do the following, and then the federal government shall. [00:06:46] Speaker 05: And again, I think our— In that hypothetical, what do you think about the standing situation there? [00:06:52] Speaker 05: Because arguably that is the situation because the state doesn't—is not forced to do anything here. [00:06:59] Speaker 01: I think it's different because here the combination of the rule and the language in the statute formally places this responsibility to make the choice on the states, whereas in the federal drug laws there is no formal role for the states to play at all. [00:07:15] Speaker 01: And I think that's the difference. [00:07:18] Speaker 01: And I think if you had a statute, as Judge Silverman suggested, that said, A, here is the law. [00:07:25] Speaker 01: We gave a meat inspection, meat quality standards hypothetical in our brief. [00:07:31] Speaker 01: A, here are the standard federal meat quality standards. [00:07:35] Speaker 01: B, these federal meat quality standards shall be enforced at the discretion of the states, shall be enforced at the discretion of a private entity, the National Cattlemen's Association. [00:07:43] Speaker 01: we think in either of those hypothetical situations, either the state or the private entity would, it seems to us, surely have at least the right to come into court and ask and have their day on the merits and say, we don't want this burden, but the federal government has given it to us. [00:07:59] Speaker 05: What relief exactly would you envision us giving you here? [00:08:05] Speaker 01: Well, Your Honor, we have asked for, at a minimum, a declaratory judgment that says that what they've done is unlawful. [00:08:12] Speaker 05: We've also asked the district court for whatever further injunctive relief he or she in this case... That declaratory judgment presumably would entail them, them being the federal government, having to enforce a law that they've chosen in their discretion not to enforce. [00:08:30] Speaker 01: Yes, I think it could be written in that way. [00:08:33] Speaker 01: The federal government has suggested that there's no redressability here, but we think that the case of Clinton v. City of New York has made very clear that a declaratory judgment is enough to redress your injury. [00:08:46] Speaker 01: In that case, that was the line item veto case, and the individuals had complained about particular provisions of the law that had been line item vetoed. [00:08:55] Speaker 01: and the court found, without really any discussion at all, that of course causation and redressability are satisfied. [00:09:01] Speaker 03: Well, wait a minute. [00:09:02] Speaker 03: What would the declaratory judgment do? [00:09:05] Speaker 03: What would be the implication? [00:09:07] Speaker 01: Well, it would say that what they've done here is unlawful. [00:09:10] Speaker 01: And, I mean, and then, I mean, it could go further. [00:09:13] Speaker 01: I mean, as we've asked also for whatever injunctive relief the court thinks is appropriate. [00:09:18] Speaker 01: So they could, he could vacate and remand or remand. [00:09:21] Speaker 03: Well, a statement that the federal government's action is unlawful by itself doesn't redress your injury at all. [00:09:31] Speaker 01: I think, we think it does in the same... How? [00:09:33] Speaker 01: Why? [00:09:34] Speaker 01: In the same, in the same way that the declaratory judgment... No, no, I'm trying to, don't use an analogy. [00:09:41] Speaker 03: Tell me why it would redress your injury in this case. [00:09:44] Speaker 01: Because it would declare that what they've done is unlawful and to the extent... That in ten cents might get you on a trolley car. [00:09:50] Speaker 03: I don't get, I don't understand where your redressability is. [00:09:56] Speaker 01: Well, we think that by declaring it unlawful, it makes clear that this is not something that the state is responsible for. [00:10:04] Speaker 01: And to the extent that we've argued that this intrudes on our sovereignty because the federal government has pushed us into their lane. [00:10:13] Speaker 01: So dual sovereignty involves these two lanes where the state stays in its own lane, federal government stays in its own lane. [00:10:19] Speaker 01: By declaratory judgment that this is unlawful, it makes clear that [00:10:22] Speaker 01: We are not responsible for making this choice. [00:10:27] Speaker 01: However, I really don't think it's a question that needs to be answered because we have asked for injunctive relief. [00:10:34] Speaker 01: What's injunctive relief? [00:10:37] Speaker 01: We've asked for whatever further injunctive relief as the court would... Well, let me tell me what... We would ask for, we would ask for vacatur. [00:10:43] Speaker 01: We would ask for vacatur of the rule which would redress our harm. [00:10:45] Speaker 05: Which would mean, in essence, in order that they enforce the law as written. [00:10:50] Speaker 01: That's correct, Your Honor. [00:10:51] Speaker 05: Well, now, what about the idea that, and maybe you haven't raised this, but the idea that the state is being forced, if it wants to enforce, to spend money that under the statute [00:11:06] Speaker 05: it wouldn't have to spend to enforce because under the statute you can defer to the federal government to enforce. [00:11:12] Speaker 05: How are we supposed to think about that in this case or is that even part of this case? [00:11:16] Speaker 01: I think that's part and parcel of it because I think if you really break down the problem with the delegation it's that we have sort of two choice that either choice is harmful to us and I think if we have to [00:11:30] Speaker 01: If we have to enforce these laws, we do have to spend money. [00:11:33] Speaker 01: And if we don't enforce these laws, we bear the accountability for not enforcing the law. [00:11:38] Speaker 04: How can you say that's part of this case? [00:11:40] Speaker 04: I didn't see that in your brief. [00:11:41] Speaker 04: I didn't see that in your complaint. [00:11:44] Speaker 01: In the complaint, we allege that the administrative fix has harmed us by changing the nature of the political accountability for this choice. [00:11:57] Speaker 05: That's a bit different, though, from the expenditure of money. [00:12:02] Speaker 05: Under the statute, [00:12:04] Speaker 05: the law could be enforced because it requires the federal government to enforce without the state spending any money at all. [00:12:12] Speaker 05: With the administrative fix for the law to be enforced, you're going to have to enforce it and therefore spend money, right? [00:12:19] Speaker 05: But I didn't, I don't know if that theory, I'm not sure I did. [00:12:22] Speaker 03: The problem with that theory is if that were your theory of injury, you can avoid it by not enforcing. [00:12:31] Speaker 03: And so our argument here is that... That's why you didn't present that argument, because you knew it wasn't going to cost you a thing if you didn't enforce. [00:12:39] Speaker 01: And so what we've argued, Your Honor, is that merely being put to that choice without the federal government as a backstop is the injury here. [00:12:48] Speaker 05: And just on the hypo, because I don't think we ever nailed that down, if the state had no role in enforcing a law, the federal government was responsible, the federal drug laws, and the federal government chose not to enforce certain federal drug laws, does a state have standing because of the repercussions for that state? [00:13:06] Speaker 01: And we think that that would be different. [00:13:08] Speaker 01: We would be a situation, first of all, we don't think you need to reach it, but second of all, we think the important distinction here is that there is a formal role that's given to the states. [00:13:18] Speaker 01: And another way to think about the difference is, you know, this – we don't dispute that this was originally constructed as a cooperative federalism regime, where there's a choice for the states to act. [00:13:28] Speaker 01: And if the states don't act, then the federal government must act. [00:13:30] Speaker 01: And this Court has found in a number of Clean Air Act cases, including a case called West Virginia v. EPA and National Association of Clean Air Agencies, that, you know, the states have standing to challenge a rule implementing a cooperative federalism regime. [00:13:45] Speaker 03: If you're correct, if this situation provides standing, then is it not correct that any time [00:13:55] Speaker 03: Congress passes a law giving a state authority to either enforce or not to enforce a statute. [00:14:09] Speaker 03: You have standing to challenge that. [00:14:13] Speaker 01: If the federal government, in two situations, one, if that's all that there is in the statute, Your Honor, so these are the federal standards. [00:14:22] Speaker 03: You have an injury if Congress passes a law giving you authority to either act or not act. [00:14:27] Speaker 01: And there is no federal role. [00:14:29] Speaker 03: Yes. [00:14:29] Speaker 01: We would say yes. [00:14:31] Speaker 01: In that situation, absolutely. [00:14:33] Speaker 03: Why? [00:14:34] Speaker 03: Because again, we think that... Anytime you're given a choice. [00:14:37] Speaker 03: to act or not to act, you're injured. [00:14:41] Speaker 01: Anytime we're given the choice to enforce or not enforce the federal standards, where the federal government does not have a backstop role. [00:14:50] Speaker 03: Well, that would be true whether or not it was an enforcement. [00:14:53] Speaker 03: If you're correct, anytime Congress gives you the state's authority to either act or not act, there's an injury. [00:15:00] Speaker 01: No, Your Honor, I think the difference would be what we're saying here is that if there is a federal regime in place, a federal law in place here, there are eight market requirements that make these things, these insurance plans illegal. [00:15:16] Speaker 01: The choice, if they give us the choice whether to enforce or not enforce that existing federal law, then yes. [00:15:23] Speaker 03: It wouldn't matter for your theory of standing. [00:15:25] Speaker 03: Your theory of standing is anytime we're given the responsibility to act or not act, we're injured. [00:15:30] Speaker 03: So that could be an enforcement case. [00:15:32] Speaker 03: It could be any kind of federal statute. [00:15:37] Speaker 03: In other words, as I detect your injury argument, any time you're given a choice, that gives you an injury or anything, whether it's enforcement or not. [00:15:49] Speaker 01: I think there's a distinction there, but your honor, even if there isn't, I don't really see a problem with that theory of standing, because first of all, this doesn't happen very much, because the federal government does not give states the unilateral discretion to implement a federal regime that's in place or not. [00:16:09] Speaker 03: That doesn't happen. [00:16:10] Speaker 03: I think they do. [00:16:12] Speaker 03: What about 14F of the National Labor Relations Act, giving states the authority to authorize right to work laws? [00:16:26] Speaker 01: Your Honor, I see my time has expired, but if I may answer the question. [00:16:29] Speaker 01: Again, I think that that's different in kind because that's giving states the ability to, it's giving them the option to enact their own laws and to enact their own state regimes. [00:16:40] Speaker 03: And that's responsibility. [00:16:42] Speaker 03: That's political responsibility. [00:16:43] Speaker 03: Therefore, there's an injury under your theory. [00:16:46] Speaker 01: That's political responsibility, Your Honor, for state laws that, of course, we always have. [00:16:52] Speaker 03: For state law that would modify federal law. [00:16:54] Speaker 01: Right, but there's still state laws and state laws that we, it's political responsibility that we deserve, that of course we should have. [00:17:01] Speaker 01: But again, in this situation, they're not asking us to enact state laws, they're saying here are the federal laws, these are the federal provisions. [00:17:09] Speaker 01: And it's up to you whether these plans are actually going to be legal. [00:17:14] Speaker 05: It's actually good for the states, in some respect, because you have complete control over whether to enforce or not this law. [00:17:22] Speaker 05: It depends on how you look at it, Your Honor, because, I mean... The federal government's staying out of the enforcement and leaving it up to each individual state whether to enforce, right? [00:17:30] Speaker 01: Again, I think it depends because there are people who like these requirements and there are people, citizens who like them and citizens who don't like them. [00:17:36] Speaker 01: And so I'm not sure that it's necessarily a good thing. [00:17:39] Speaker 05: But that's the point. [00:17:40] Speaker 05: It's up to you as the state to decide in your state whether you like them or not. [00:17:45] Speaker 01: But I think that is the point, Your Honor, which is that the federal government has... The decision whether to do that is the injury. [00:17:50] Speaker 01: Right, and they have enacted a federal law and they should take responsibility for it. [00:17:54] Speaker 01: It's not for them, it cannot be the case that they can enact a federal law and make it someone else's decision or problem as to whether or not. [00:18:02] Speaker 05: It's just interesting, as you well know, usually the complaint from the states is that the federal government's doing a one-size-fits-all kind of situation, and here actually it's [00:18:11] Speaker 05: each state can chart its own course. [00:18:13] Speaker 01: Understood, Your Honor. [00:18:14] Speaker 01: Understood. [00:18:14] Speaker 01: Of course, the old underlying merits issue here is that they have exercised what they claim is enforcement discretion when it really, really isn't. [00:18:22] Speaker 01: And they've done that in cases where they think that they can argue that no one is harmed by this. [00:18:28] Speaker 01: But in this case, the state is. [00:18:29] Speaker 05: Great. [00:18:30] Speaker 05: We'll give you time on rebuttal. [00:18:31] Speaker 05: Thank you. [00:18:42] Speaker 05: Good morning. [00:18:43] Speaker 00: Good morning. [00:18:43] Speaker 00: May it please the court, Lindsay Powell for HHS. [00:18:46] Speaker 00: The district court correctly dismissed for lack of standing here, because West Virginia has not alleged a cognizable injury, and any injury that it has asserted would not be redressed by the relief that it seeks. [00:18:57] Speaker 00: With respect to redressability, the state has made clear that it does not want enforcement. [00:19:01] Speaker 00: It says that in the complaint repeatedly. [00:19:03] Speaker 00: You can see it at JA 9 and JA 39, where the relief that it asks for is a remand to HHS to permit the administration to work with Congress [00:19:12] Speaker 00: The notion asserted by counsel in this argument that, in fact, the state does want a remand with vacator is new and inconsistent with what counsel had said in the brief previously. [00:19:26] Speaker 05: Suppose that they did want enforcement, though. [00:19:30] Speaker 00: I mean, we certainly don't think it changes the bottom line on standing. [00:19:35] Speaker 00: But it is fairly remarkable here as a matter of redressability that they do not want that enforcement. [00:19:43] Speaker 00: What they want is a remand that keeps the status quo in place so that the administration can work with Congress. [00:19:49] Speaker 00: And that's, of course, not something that the court can order. [00:19:51] Speaker 00: It's a very speculative outcome that may or may not result from a remand order in this case. [00:19:58] Speaker 00: And that's not relief. [00:20:00] Speaker 00: in the sense necessary for Article III standing. [00:20:05] Speaker 00: The state has also failed to allege a cognizable injury for the reasons already suggested by the panel. [00:20:11] Speaker 00: The choice put to the states is put to them by the Affordable Care Act itself. [00:20:16] Speaker 00: It makes them the primary enforcers, which has traditionally been the case even before the Affordable Care Act. [00:20:21] Speaker 00: The Public Health Service Act first established this relationship of cooperative federalism. [00:20:25] Speaker 00: So the states have always been in the role of deciding in the first place whether to enforce these federal requirements. [00:20:31] Speaker 00: And then if HHS makes a finding that a state has substantially failed to enforce, then the federal government has responsibility for enforcement. [00:20:39] Speaker 00: So this decision, this choice, has always existed. [00:20:42] Speaker 00: It's not the product of the transitional policy. [00:20:44] Speaker 05: One way to think about it, though, is the federal statute guarantees [00:20:48] Speaker 05: that, at least by its words, that the federal government will enforce, thereby relieving the state of the obligation or decision to enforce and saving it the money that it costs to enforce. [00:21:00] Speaker 05: By the federal government not doing that, the state, if it wants it to be enforced now, has to expend money. [00:21:08] Speaker 00: Two things, Your Honor. [00:21:09] Speaker 00: First, the state, even before the transitional policy, did have to make a choice. [00:21:13] Speaker 00: It still had to decide whether to enforce or not. [00:21:16] Speaker 00: So to the extent that there is a burden in that choice, it pre-existed the policy. [00:21:20] Speaker 05: True, but they knew then that the federal government would enforce, in other words, the costs of enforcement [00:21:27] Speaker 05: would be borne by the federal government under the statute, not by the states. [00:21:32] Speaker 05: Now, if the administrative fix, the costs will be borne by the state government if it's going to be enforced. [00:21:40] Speaker 00: With respect to costs, those are not actually in this case. [00:21:43] Speaker 00: As it was observed before, they're not in the complaint. [00:21:45] Speaker 00: It's not in the briefing. [00:21:46] Speaker 00: That is not the harm that the state has claimed here. [00:21:49] Speaker 03: Of course, if, to take my colleague's point to the next step, [00:21:56] Speaker 03: you would concede, certainly, if the state was obliged to enforce in the absence of federal enforcement and there were no questions the state would have standing. [00:22:07] Speaker 00: Yes, if the state were actually compelled, if its actions were compelled. [00:22:10] Speaker 00: Then it would have to spend money. [00:22:12] Speaker 00: Then it would have to spend money and I think we would then be in a place where certainly the resemblance to traditional 10th Amendment cases would be stronger, that you'd have a greater argument with sovereign. [00:22:22] Speaker 03: What about the 10th Amendment argument there? [00:22:24] Speaker 03: There's a subtle point that [00:22:28] Speaker 03: that appellant raises, the West Virginia raises, they say this is a 10th Amendment violation. [00:22:34] Speaker 03: And the, you have to assume the merits in a standing case. [00:22:41] Speaker 03: And therefore, since we argue that there's a 10th Amendment violation because of this confusion of sovereignty, therefore, [00:22:54] Speaker 03: the standing issue merges with the merits, and you have to assume the merits, therefore you assume standing. [00:23:01] Speaker 00: Well, and at the same time, Your Honor, they insist that we should not merge the standing inquiry with the merits, so it's sort of a puzzle that way. [00:23:06] Speaker 00: In district court, the state did take the position that there would be standing in any time there was a colorable 10th Amendment claim, essentially for the reason Your Honor just stated, and there's no precedent to support that. [00:23:17] Speaker 00: That simply is not what the cases say. [00:23:19] Speaker 00: The cases that the state principally relies on are, of course, Prince, New York and Lamont. [00:23:25] Speaker 00: Prince and New York expressly involved federal provisions that did compel or coerce the states in the traditional sense. [00:23:32] Speaker 00: And in Lamont, the allegations were to that effect. [00:23:34] Speaker 05: But isn't that a merits determination, whether there is actual compulsion? [00:23:39] Speaker 00: Yes, but the state relies on the same analysis for its standing. [00:23:45] Speaker 00: Those are the cases to which it points, and there is no separate standing inquiry there. [00:23:48] Speaker 00: So to the extent that we look to those cases at all, I think the question... For instance, in New York, the standing was so obvious, the court never discussed it. [00:23:56] Speaker 00: Yes, that's right, your honor. [00:23:58] Speaker 00: But so they are alleging harm, well, they assert that they're alleging two different harms. [00:24:02] Speaker 00: The first is one to a sovereign interest that they borrow from these 10th Amendment cases for. [00:24:07] Speaker 00: The second, which the district court correctly observed, collapses into the first because both are actually about this feeling of additional responsibility. [00:24:14] Speaker 00: But they say that a private party put in the same position would nevertheless feel it. [00:24:18] Speaker 00: And the only case they cite for that is Carter Cole, which does not actually support the proposition it's cited for. [00:24:24] Speaker 03: Why not? [00:24:25] Speaker 00: I mean, Carter Cole was about many things, as Your Honor pointed out. [00:24:28] Speaker 00: It did not address standing specifically. [00:24:30] Speaker 00: But in those consolidated cases, many of the parties were in the position of challenging being put to a coercive choice, either pay a tax that was found to be punitive or submit to the scheme of federal regulation. [00:24:46] Speaker 00: And I think it's easy to identify injuries other than the one the state suggests there. [00:24:50] Speaker 00: But it is conspicuous that that's their only case. [00:24:53] Speaker 00: There is nothing else to suggest that there would be standing in those circumstances, and we don't think there would be. [00:24:57] Speaker 05: Who would have standing in this case to enforce, I mean, to sue to challenge the alleged non-enforcement of the statute? [00:25:05] Speaker 00: I don't know, Your Honor. [00:25:06] Speaker 00: We are not currently aware of any party that has identified a cognizable injury in fact in order to sue for this. [00:25:13] Speaker 00: I can't say categorically that nobody could sue, but certainly the state is not the party that has brought forth the necessary allegations to bring this challenge. [00:25:21] Speaker 03: When the government took the action it took [00:25:24] Speaker 03: Did it contemplate that no one would have standing to challenge? [00:25:29] Speaker 00: To my knowledge, that inquiry was not undertaken, Your Honor. [00:25:32] Speaker 00: I'm not aware of that determination. [00:25:34] Speaker 05: But West Virginia is- That's if no one has standing. [00:25:37] Speaker 05: So this is a statute that mandates certain things in health insurance. [00:25:42] Speaker 05: And the government's saying we're not going to enforce those despite the mandatory statute as a matter, I assume, of prosecutorial discretion. [00:25:49] Speaker 05: Is that correct? [00:25:50] Speaker 00: That is correct, Your Honor. [00:25:51] Speaker 00: And it is important—this gets more to the merits, which are not presented—but I just want to be clear that this is a transitional policy, and it's fairly narrow in its effect. [00:26:01] Speaker 00: It only applies in the small group and individual markets and only to plans that were already— [00:26:06] Speaker 05: The word narrow I don't think really applies correctly to something that affects so many insurance companies and insurance plans and insured parties, so I'm not sure that's an accurate word here. [00:26:16] Speaker 00: Well, I just wanted to be clear that it does also, this is not every plan and every case by any means. [00:26:22] Speaker 00: It's certain of the reforms with respect to certain policies that were already in effect, and as HHS explained... But it's certain, I don't want to get too far on the merits, but [00:26:30] Speaker 05: you're trying to minimize this and it does seem certain critical reforms in the statute which were unilaterally suspended by the executive branch. [00:26:40] Speaker 00: Yes, I think HHS exercises discretion to ensure that people in the course of the transition did not lose policies that they that they wanted to keep, particularly when the alternative for some people might have been going without a policy because. [00:26:52] Speaker 00: Right. [00:26:52] Speaker 05: There's a good reason why they did it. [00:26:54] Speaker 05: I grant you that. [00:26:54] Speaker 05: I'm just saying the statute said X and the the executive branch said that's going to actually to follow the statute will cause some harm. [00:27:04] Speaker 05: So we're not going to enforce the statute. [00:27:06] Speaker 03: You could always encourage us to reach the merits. [00:27:08] Speaker 00: Your honor, those are not presented at this time. [00:27:13] Speaker 04: If the state alleged in its complaint that we always intended to enforce this provision of the statute and we were relying upon the federal government to do so and then once the administrative fix came out, [00:27:29] Speaker 04: we started enforcing and because we believe that it should be enforced and we're incurring the costs, would that state have standing? [00:27:41] Speaker 04: I understand that it's your position that that's not this case, but if that were the case, would the state have a cognizable injury? [00:27:51] Speaker 00: As I think you suggested earlier, that the state in that position would be still making a choice to undertake those expenditures. [00:27:56] Speaker 00: It wouldn't be being put in the position where it's having to do that, being forced to do it. [00:28:01] Speaker 00: That would be a choice by the state. [00:28:03] Speaker 00: So we think that sort of manufactured standing does not give rise to a cognizable injury. [00:28:07] Speaker 05: The reason I was asking about the merits is I'm trying to figure out, and maybe this can't be solved in this case. [00:28:13] Speaker 05: In fact, I'm pretty sure it won't be solved in this case. [00:28:15] Speaker 05: But who has standing among the citizenry, if anyone, to challenge the failure of the government to enforce a statute against private parties? [00:28:28] Speaker 00: I'm not sure if that's the case. [00:28:30] Speaker 00: I'm not sure if that's the case. [00:28:32] Speaker 00: Again, your honor, with respect to the policy here, we're not currently aware of any citizen who has been harmed in the necessary way and can bring those allegations, but I can't say there isn't such a person. [00:28:43] Speaker 00: So it's hard to identify the hypothetical in these circumstances, but even if there weren't such a person, it wouldn't follow that they're standing here. [00:28:58] Speaker 05: If you're saying the state doesn't have standing and then holding out, I think, although you're not doing it overtly, but holding out the idea, well, maybe someone else has standing. [00:29:06] Speaker 05: But I'm not sure the government's theories that anyone will ever have standing on a case of prosecutorial discretion. [00:29:11] Speaker 00: And I'm not able to say here which case, if any, someone would have such standing. [00:29:17] Speaker 00: But this case is a particularly easy one because of the redressability issues, because there is no coercion or compulsion. [00:29:25] Speaker 00: There's an exercise of authority pursuant to the pre-existing allocation made by Congress here. [00:29:31] Speaker 00: It's also significant to consider the breadth of the implications of the state's position. [00:29:37] Speaker 00: And these have also been alluded to by the earlier questioning. [00:29:40] Speaker 00: But it's not clear what would distinguish this case from the example of concurrent jurisdiction, where states and the federal government both have authority to regulate drug offenses. [00:29:51] Speaker 00: And if the federal government exits that arena, doesn't it put more pressure on the states, particularly a state that wants drug laws to exist to be enforced, [00:29:59] Speaker 00: The state feels more pressure, surely in those circumstances, to regulate or to enforce. [00:30:05] Speaker 00: And it's unclear why that burden, that sort of amorphous abstract feeling of political accountability, is any different in that context from the similarly abstract theory that the state relies on here. [00:30:14] Speaker 00: And it would be an extraordinary expansion of standing. [00:30:17] Speaker 00: to find an injury, in fact, in those circumstances. [00:30:21] Speaker 00: Similarly, there are myriad federal statutes that give enforcement authority to the state that allow the states to get into federal court to sue to enforce federal statutes. [00:30:30] Speaker 00: And there, too, a decision not to enforce by the federal government would surely make some states feel more pressure to take that enforcement mantle themselves. [00:30:39] Speaker 05: But it's... How many schemes are you aware of that say the states may enforce, the federal government shall enforce? [00:30:47] Speaker 00: I have not looked at that exhaustively, but I'm aware of at least a dozen. [00:30:52] Speaker 00: There's certainly many of them. [00:30:53] Speaker 05: Spanning what fields? [00:30:55] Speaker 00: Many of them are in the area of consumer protection, but there's also shared authority in the antitrust area. [00:31:02] Speaker 05: In the CFPB? [00:31:04] Speaker 00: I haven't looked at that one, but there's, I think, flammability standards, telephone standards. [00:31:11] Speaker 00: There's a long list, certain drug provisions. [00:31:15] Speaker 05: And then last question, just to give you an opportunity. [00:31:17] Speaker 05: Mass versus EPA is not disposed of here because? [00:31:21] Speaker 00: because there the central injury being alleged by the state was a sovereign harm to the state's interest in its own lands. [00:31:29] Speaker 03: It said that failure to regulate... Well, Justice Stevens talked a lot about abstract notions of sovereignty before he got to the land. [00:31:37] Speaker 00: Well, but the land is emphatically in there, and that's an interest that's not present in this case. [00:31:42] Speaker 03: I think the Court... Justice Roberts did say that all the discussion Justice Stevens may indulge in concerning abstract notions of sovereignty was not what he relied on. [00:31:58] Speaker 03: But it does provide a certain confusion, does it not? [00:32:02] Speaker 00: There are some statements in that case that are broader than others, but in the majority opinion is the reliance on... You totally disavowed Justice Stevens' abstract discussions, is that correct? [00:32:15] Speaker 00: I do no such thing, Your Honor, but mass versus EPA is distinguishable for many reasons, including the one that I said. [00:32:26] Speaker 00: The court also pointed there to the fact of a procedural harm, which is not something that the state has alleged here. [00:32:31] Speaker 00: So that's another basis for distinguishing it. [00:32:35] Speaker 00: If the court has no further questions, we ask that you affirm. [00:32:38] Speaker 05: Thank you. [00:32:40] Speaker 05: I'll give you two minutes for rebuttal. [00:32:44] Speaker 01: Thank you, Your Honor. [00:32:45] Speaker 01: Just a couple of points. [00:32:46] Speaker 01: I think the first one that I would start with is there's been some talk about what are the consequences of what we're asking for here. [00:32:54] Speaker 01: And I'm not sure which dozen statutory regimes my friend is talking about. [00:33:00] Speaker 01: But if they're all cooperative federalism regimes, the kind that we're discussing, where the state has the right of first refusal, but the federal government shall backstop that, [00:33:10] Speaker 01: We think that it would make complete sense for the states to have standing in situations where the federal government has fundamentally changed the cooperative federalism regime. [00:33:20] Speaker 03: But in your theory of injury, it wouldn't matter whether the federal government was a backstopper. [00:33:26] Speaker 03: If any statute that gave the states the right to either act or not act would create standing under your theory. [00:33:36] Speaker 03: It's political accountability. [00:33:38] Speaker 03: Therefore, we're injured. [00:33:40] Speaker 01: It's political accountability to the extent, again, that there is a federal regime that we are being required to enforce or not enforce. [00:33:45] Speaker 03: And again, the point that I'm trying to make... Of course, you'd have to have a federal regime. [00:33:49] Speaker 03: Otherwise, you wouldn't. [00:33:50] Speaker 03: But it doesn't matter. [00:33:51] Speaker 03: Your position is not limited to enforcement. [00:33:58] Speaker 03: The point that I'm trying to make, Your Honor... You understand what I mean when I say it's not limited to enforcement? [00:34:02] Speaker 01: I do, but I think what's important to remember here is the federal government has designed a particular regime to encourage state participation. [00:34:12] Speaker 01: A cooperative federal regime of the unique kind that the Supreme Court has said is constitutional. [00:34:18] Speaker 01: Because of the way that it's designed, it skirts the sovereignty problems. [00:34:22] Speaker 01: What they have done is they have fundamentally changed that regime. [00:34:25] Speaker 01: It seems to us to make sense that when they have fundamentally changed one aspect of a regime that is specifically designed to protect state sovereignty, that it would make sense for us to be able to come in here and claim that what they've done is unlawful. [00:34:39] Speaker 05: What else do you think has standing to challenge this, if anyone? [00:34:43] Speaker 01: We're not sure. [00:34:44] Speaker 01: I mean, as you heard the federal government say today, there is another case before this court when an individual has brought suit challenging the administrative fix, and they've argued that his harms there are speculative because he can't prove that the administrative fix has caused his premiums to change in any way. [00:35:00] Speaker 01: So far as we know, we're not sure that there would be any. [00:35:04] Speaker 01: And we think it makes sense, again, for the states to be able to have standing care. [00:35:08] Speaker 01: And I had one more point, but let's see. [00:35:11] Speaker 05: Yeah, you can conclude. [00:35:11] Speaker 01: The only other point that I want to mention is in response to Judge Silberman, I do think that there's an important distinction between merits and standing. [00:35:21] Speaker 01: And I think, Your Honor, please take a look at the Lamott case, where this court said, you've alleged compulsion, therefore you have standing. [00:35:31] Speaker 01: However, on the merits we find that there is no compulsion, therefore you lose on the merits. [00:35:35] Speaker 01: The federal government's attempt to distinguish that case is nonsensical. [00:35:38] Speaker 01: They say, well, if you've alleged something that is factually similar to New York and Prince, then you have standing. [00:35:45] Speaker 01: And only in that case do you have standing. [00:35:48] Speaker 01: But then even if it's not true, even if it turns out that on the merits, the court concludes that actually you weren't compelled. [00:35:55] Speaker 01: And I don't see how they can distinguish that case from ours, where the facts that we've alleged are true and undisputed. [00:36:01] Speaker 01: And I think at a minimum, there was a colorable allegation of a 10th Amendment violation. [00:36:07] Speaker 01: Thank you. [00:36:08] Speaker 05: Thank you, both counsel. [00:36:10] Speaker 05: The case is submitted.