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July 5, 2019
Donald B. Verrilli, Jr.
Munger, Tolles & Olson LLP
1155 F Street NW, 7th Floor
Washington, D.C. 20004
(202) 220-1100
Lyle W. Cayce, Clerk of Court
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408
Re:

State of Texas, et al. v. United States, et al., No. 19-10011

Dear Mr. Cayce:
On June 26, 2019, the Court directed the parties to address several issues
relating primarily to whether appellate jurisdiction exists in this case. The answer is
yes, most straightforwardly because both the Intervenor States and the Federal
Defendants are injured by the decision below and both filed timely notices of appeal
from that decision, and are pursuing their appeals. That the Department of Justice
(DOJ) now refuses to defend the Affordable Care Act (Act) does not alter the
analysis. That conclusion directly follows from United States v. Windsor, 570 U.S.
744 (2013), and INS v. Chadha, 462 U.S. 919 (1983), in which the Supreme Court
upheld appellate jurisdiction in materially indistinguishable circumstances. Thus,
there is no jurisdictional barrier to this Court’s reversal of the decision below.
I.

Both the Intervenor States and the House of Representatives Have
Standing to Intervene, and Did So in a Timely Fashion.
Both the Intervenor States and the House of Representatives (House) have

 

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standing to intervene, and their interventions were timely as to all issues and as to
both orders of the district court.
A.

The Intervenor States plainly have standing because they were injured

by the decision below. The district court declared the Act invalid in toto—a decision
that DOJ has acknowledged is the “functional equivalent” of an injunction.
ROA.2722-24. That decision would (among other injuries) deprive the Intervenor
States of hundreds of billions of dollars of federal funding. See ROA.240-43. A
loss of “federal funds” is a “sufficiently concrete and imminent injury to satisfy
Article III,” and there can be “no dispute that a ruling in favor of” a party injured in
that way “would redress that harm.” Dep’t of Commerce v. New York, 2019 WL
2619473, at *8 (U.S. June 27, 2019).
DOJ argues that the decision below does not apply to the Intervenor States
because a declaratory judgment cannot “declare the rights of nonparties.” DOJ
Letter Br. 11. But having intervened at the outset, the Intervenor States are parties.
See Marcaida v. Rascoe, 569 F.2d 828, 831 (5th Cir. 1978) (“[A]n intervenor is
treated as if he were an original party ….”). They are just as bound by the decision
below as any other party, and are therefore injured by its preclusive effect. See 59
Am. Jur. 2d Parties § 224 (an intervenor “renders itself vulnerable to complete
adjudication of the issues in litigation between itself and the adverse party”); United
States v. State of Ore., 657 F.2d 1009, 1014 (9th Cir. 1981) (Kennedy, J.)
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(intervenors are “fully bound by all future court orders”).

That injury is

independently sufficient to provide standing to appeal. Nat’l Presto Indus., Inc. v.
Dazey Corp., 107 F.3d 1576, 1579 (Fed. Cir. 1997).
In any event, even if DOJ were correct about the scope of the judgment, the
Intervenor States still have standing based on their likely loss of federal funding.
The unstated premise of DOJ’s argument is that the Federal Defendants would
comply with the district court’s judgment only in the Plaintiff States, and not in the
Intervenor States.

That result is inconceivable, given the overwhelming

administrative burden (not to mention political outcry) that would result from
enforcing the Act in only half of the country. Moreover, numerous provisions of the
Act are not State-specific1 and cannot be administered state by state. Given that, the
“predictable effect” of the judgment is that the Federal Defendants will comply in
all States, thus imposing an injury on the Intervenor States that is fairly traceable to
the district court’s judgment. New York, 2019 WL 2619473, at *8.
That is no doubt why DOJ has never before in this litigation suggested that
the judgment would not affect the Intervenor States. When the Intervenor States
moved to stay the judgment below, DOJ did not say that they lacked standing to do
so because the district court’s judgment would not affect them. To the contrary, DOJ
                                                            
1

See, e.g., Pub L. No. 111-148, Tit. VII, Subtit. A, 124 Stat. 119 (2010) (enacting the Biologics
Price Competition and Innovation Act of 2009); 42 U.S.C. § 1315a (establishing the Center for
Medicare and Medicaid Innovation).
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acquiesced in the stay precisely because the judgment “could affect millions of
Americans and impact virtually every aspect of the American healthcare system.”
ROA.2723. In granting the stay, the district court accepted the Intervenor States’
arguments about the “real-life impact” its decision would have in their States.
ROA.2783. And when the district court entered its final judgment, it declared the
Act wholly invalid—not just unenforceable in half of the country. ROA.2785. This
Court should not accept DOJ’s attempt to switch positions again.
B.

The House’s intervenor status is equally secure and need not be

revisited by this Court. Because the Intervenor States have standing, the House need
not have standing to intervene. And in any event, the House has standing to represent
the Federal Government, and the House timely intervened.
1.

“Article III does not require intervenors to independently possess

standing” when an existing party possesses standing and seeks the same “ultimate
relief” as the intervenor. Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir. 1998). That is
true here: the Intervenor States are existing parties with standing to press their
appeal, see pp. 2-4, supra, and the House seeks the same relief as the Intervenor
States. Thus, the House need not possess Article III standing to intervene.
2.

If the Court nevertheless reaches that issue, the House has its own

standing to intervene on appeal. The federal government, like any other, has a
cognizable “interest in the continued enforceability of its own statutes.” Maine v.
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Taylor, 477 U.S. 131, 137 (1986); see Diamond v. Charles, 476 U.S. 54, 62 (1986)
(“[A] State has standing to defend the constitutionality of its statute.”). To defend
that interest, it has the power “to designate agents to represent it” in court—including
by authorizing agents to litigate on its behalf “in a defined class of cases.” Virginia
House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951-52 (2019) (citation
omitted). If the federal government has designated an agent “to represent its
interests” in a particular case, and if the agent has “carried out that mission,” the
agent has standing to represent the federal government in court. Id. at 1951.
“Except as otherwise authorized by law,” the “conduct of litigation” is
“reserved” to DOJ by federal statute. 28 U.S.C. § 516. But there are exceptions.
Congress has, for example, granted several agencies independent litigating authority.
See, e.g., 15 U.S.C. § 77t(b) (SEC); id. § 717s(a) (FERC). As a result, there are
cases in which the federal government is represented solely by an entity other than
DOJ, and still others in which the federal government is represented both by DOJ
and another agency—even on opposite sides, see, e.g., Epic Systems Corp. v. Lewis,
138 S. Ct. 1612 (2018); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018).
Another exception applies here. The Supreme Court has “long held” that each
House of Congress is a “proper party to defend the validity of a statute when an
agency of government, as a defendant charged with enforcing the statute, agrees with
plaintiffs that the statute is inapplicable or unconstitutional.” Chadha, 462 U.S. at
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940. Federal law recognizes that feature of our constitutional structure; it directs
DOJ to inform Congress whenever DOJ refuses to defend the constitutionality of a
federal statute, “within such time as will reasonably enable the House of
Representatives and the Senate to take action, separately or jointly, to intervene in
timely fashion in the proceeding.” 28 U.S.C. § 530D(b)(2). That law is consistent
with Supreme Court precedent and ensures that the House (or Senate, or both) may
defend the constitutionality of duly enacted laws when DOJ refuses to do so.2
This case has proceeded along those carefully drawn lines. When the case
was initially filed, DOJ served as the sole representative of the federal government,
in keeping with its usual role. DOJ ultimately decided to contest, rather than defend,
the constitutionality of the Act. DOJ therefore submitted a letter pursuant to Section
530D notifying the House of its decision.3

When the 116th Congress was

constituted, the House immediately resolved to “stand in” on behalf of the federal
government and represent its interest in upholding the Act. Bethune-Hill, 139 S. Ct.
at 1951. And that is precisely what the House is doing—defending the law in its
capacity as a representative of the federal government, see id. at 1952, just as it has
done in the Supreme Court and other courts on numerous similar occasions, see

                                                            
2

DOJ repeats the arguments it has already made in response to Chadha. See DOJ Letter Br. 9-10.
Those arguments are still incorrect. See House Reply to Mot. to Intervene 5-6.
3
Letter from Jefferson B. Sessions III, Attorney General, to Paul Ryan, Speaker (June 7, 2018),
https://www.justice.gov/file/1069806/download.
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House Mot. to Intervene 7-8 & nn.3-4 (“Motion”).4
A holding that the House lacks standing in those circumstances would disturb
that longstanding balance between co-equal branches and would invite severe harm
to our constitutional structure. In many cases in which DOJ declines to defend a
federal law, there will not be a party (like the Intervenor States here) that can assert
a cognizable injury. The only parties available to step in and defend the law will be
the Houses of Congress. But if they lack standing to do so, all litigation decisions
in defense of the law will be left to DOJ, despite its decision not to defend the law.
DOJ could choose not to appeal if a district court decides to enjoin the law—
foreclosing any appellate review of the district court’s decision. If our system
worked that way—if it permitted the Executive Branch to “nullify Congress’
enactment solely on its own initiative”—it would “pose[] grave challenges to the
separation of powers.” Windsor, 570 U.S. at 762.
3.

The House’s motion was timely as to all issues and as to both orders.

The timeliness requirement is principally “a guard against prejudic[e],” such that
                                                            
4

Contrary to DOJ’s argument (Letter Br. 7), the House has not asserted only “‘institutional’ harm.”
As DOJ recognizes (id.), the House’s standing has not been litigated in this case because the House
did not need to demonstrate standing to intervene. See Ruiz, 161 F.3d at 829-33. This letter is the
House’s first substantive discussion of its standing. The House has standing based on its authority
to represent the United States’ interest in defending the constitutionality of a federal law when
DOJ refuses to do so. Accord Mot. to Intervene 3-13 (arguing for intervention based on Chadha
and Section 530D as well as noting House’s institutional interests). This Court therefore need not
address Bethune-Hill’s discussion of limits on one house’s ability to represent its institutional
interests, as that discussion pertained to a legislative body that did not have authority to represent
the State’s interests.
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“courts should allow intervention where no one would be hurt and greater justice
could be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (citation
and quotation marks omitted). The House moved to intervene in the district court
on the first day that the 116th Congress could participate in this case, shortly after
the entry of both district court orders. It moved to intervene in this Court on the
same day the appeal was docketed. In neither court did the House’s motion threaten
to disturb the parties’ briefing or otherwise alter ongoing proceedings. Indeed,
despite opposing the House’s motion as untimely, DOJ could not muster any reason
why any party would be prejudiced by the House’s intervention. See Opp. to Motion
16-17. Instead, DOJ focused solely on the length of time between the filing of suit
and the House’s motion. But in doing so, it not only ignored the overriding
importance of prejudice in timeliness analysis, but also rested its argument on the
mistaken premise that the 116th Congress can be faulted for what the 115th Congress
chose not to do. That premise is contrary to the basic fact that the House is not a
continuing body. See Motion 16-17; Reply to Motion 9-10.
Judge Southwick reviewed all of these arguments after full briefing on
intervention, including on timeliness. See Motion 15-19; Opp. to Motion 16-17;
Reply to Motion 9-10. And he resolved that issue, as well as the motion itself, in
favor of the House. See Order on Motion 2 (explaining that, “[i]n the context of this
case, the motion to intervene was not untimely,” and stressing that “intervention will
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not unduly delay or prejudice the rights of the original parties”); see also New
Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 473 (5th Cir.
1984) (en banc).
The course of this appeal has confirmed the soundness of that decision. Judge
Southwick granted the House’s motion before briefing began—indeed, more than a
month before the opening briefs were filed. The House’s intervention did not
prevent this Court from setting an expedited briefing schedule or from setting
argument promptly thereafter. See Ross v. Marshall, 426 F.3d 745, 754 (5th Cir.
2005) (permitting intervention after district court judgment where it “did not
interfere with the orderly processes of the court”). All of the parties have now
briefed the case on that expedited schedule with full knowledge that the House would
participate as a party in the appeal and defend the Act, yet none has alleged prejudice
since the House was granted intervenor status. There has, in short, been no prejudice
from the House’s intervention—not to the Court, and not to the parties. And in all
events, any such prejudice would have fully dissipated now that briefing is complete
and the parties are on the eve of argument.
II.

A Live Case or Controversy Exists Between the Plaintiffs and Federal
Defendants, Notwithstanding DOJ’s Refusal to Defend the Act.
Even if the Court were to reject all of the above arguments, there remains a

live controversy between Plaintiffs and the Federal Defendants. Plaintiffs seek
wholesale invalidation of the Act. The Federal Defendants are continuing to enforce
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the Act and are therefore injured by the district court’s decision. In precisely these
circumstances, the Supreme Court has found a live controversy sufficient to support
jurisdiction. Windsor, 570 U.S. at 754.
A. In Windsor, a taxpayer challenged the constitutionality of the Defense of
Marriage Act (DOMA). While the suit was pending, DOJ changed position and
began arguing that DOMA was unconstitutional. Critically, however, the Executive
continued to enforce the statute pending a final determination of DOMA’s
constitutionality to “recogniz[e] the judiciary as the final arbiter of the constitutional
claims raised.”

Windsor, 570 U.S. at 754.

The district court held DOMA

unconstitutional. Despite agreeing with that decision, DOJ filed a notice of appeal.
The court of appeals exercised jurisdiction and affirmed. Id.
The Supreme Court held that it had appellate jurisdiction notwithstanding
DOJ’s agreement with the plaintiff’s legal position. “[T]he United States retain[ed]
a stake sufficient to support Article III jurisdiction on appeal,” the Court explained,
because the district court’s order imposed a “real and immediate” injury on the
United States. Id. at 757-58. In view of the Executive’s continued enforcement of
DOMA, the district court’s decision “order[ed] the United States to pay money that
it would not disburse but for the court’s order.” Id. at 758. The fact that DOJ may
have “welcome[d] this order” did not “eliminate the injury.” Id. The plaintiff’s
“ongoing claim for funds that the United States refuse[d] to pay thus establishe[d] a
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controversy sufficient for Article III jurisdiction.” Id.
That conclusion was consistent with Chadha. There, too, the Executive
determined that a federal statute was unconstitutional and refused to defend it—but
simultaneously continued to abide by it. The Court ruled that there was “adequate
Art. III adverseness.” 462 U.S. at 939. The Executive was “sufficiently aggrieved”
by the court of appeals’ decision holding the statute unconstitutional because that
decision “prohibit[ed]” the Executive “from taking action it would otherwise take,”
namely, complying with the statute. Id. at 930. That was so “regardless of whether
the agency welcomed the judgment.” Windsor, 570 U.S. at 758.
Those decisions establish that a live controversy remains here. Plaintiffs seek,
and the district court has ordered, wholesale invalidation of the Act. The Federal
Defendants think that is the right outcome of this litigation (to some extent, see n.6,
infra). But just as in Windsor, the Federal Defendants are continuing to enforce the
Act pending a final judicial determination of the Act’s validity.5 DOJ Letter Br. 1,
4; ROA.2730-31. The district court’s order holding the Act invalid in its entirety
thus imposed “real and immediate” injuries on the United States. Windsor, 570 U.S.
at 755. And because the Executive continues to enforce the Act notwithstanding its
litigation position, its newfound agreement with Plaintiffs that the Act’s provisions
                                                            
5

Dep’t of Health and Human Services, Statement from the Department of Health and Human
Services on Texas v. Azar (Dec. 17, 2018), https://www.hhs.gov/about/news/2018/12/17/
statement-from-the-department-of-health-and-human-services-on-texas-v-azar.html.
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are all inseverable from the mandate does not erode the controversy between the
parties. In Windsor, DOJ and the plaintiff were in complete agreement on the proper
resolution of the legal question at issue, yet the Court concluded that “the refusal of
the Executive to provide the relief sought suffices to preserve a justiciable dispute
as required by Article III.” Id. at 759. So too here.6
B.

DOJ’s agreement with Plaintiffs also does not create any prudential

barriers to appellate review. Windsor explained that any prudential concern about
sufficient adversarial presentation of the issues is alleviated by the presence of a
party or amicus arguing against the plaintiff and the government. Id. at 759-60.
Indeed, the Supreme Court routinely adjudicates cases in which the Executive has
changed positions and agrees with the other party, simply appointing an amicus to
ensure adversarial presentation. Id. at 760. In fact, adversarial presentation was
assured in both Windsor and Chadha by Congress’s participation. Windsor, 570
U.S. at 761; Chadha, 462 U.S. at 940.
Here, adversarial presentation of the issues is guaranteed in the same way—
by the participation of the House (to say nothing of the Intervenor States). Even if
                                                            
6

Windsor and Chadha establish that there is appellate jurisdiction here even assuming that
Plaintiffs and DOJ are in complete agreement that the district court’s judgment should be affirmed
in full. But this Court also has jurisdiction for another reason: DOJ is not defending the entirety
of the decision below. While Plaintiffs seek complete affirmance of the district court’s judgment,
DOJ argues here that the “relief awarded should be limited only to those provisions that actually
injure the individual plaintiffs”—a remedy that the district would have to tailor “on remand.” DOJ
Br. 28-29. That divergence between the remedy that DOJ seeks and the remedy the district court
provided plainly establishes appellate jurisdiction. Accord DOJ Letter Br. 5-6.
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the Court were to conclude that the House is not a proper intervenor (as this Court’s
Question 2 asks the parties to assume arguendo), the Court could alleviate any
prudential concerns by treating the House’s brief as an amicus brief. See Windsor,
570 U.S. at 760. And if there were any remaining doubt as to the prudence of hearing
this case, its nationwide importance would confirm the need to do so. See id. at 761.
III.

If DOJ’s Change in Position Has Mooted the Controversy and No Other
Defendant Has Standing, the Court Should Vacate the Decision Below
Should this Court determine that it lacks appellate jurisdiction, it should

vacate the district court’s judgment. That is so for two reasons.
A.

First, this Court should vacate the district court’s decision because

Plaintiffs lacked standing to bring this suit in the first place. See House Br. 20-35
(arguing that all Plaintiffs lack standing); House Reply Br. 9-19.
When an appellate court has concluded that it lacks appellate jurisdiction, the
court must then “search the pleadings on core matters of federal-court adjudicatory
authority” to assure itself of “the authority of the lower courts to proceed.”
Arizonans for Official English v. Arizona, 520 U.S. 43, 73 (1997). If the appellate
court concludes that the district court “lack[ed] jurisdiction,” the appellate court may
exercise “jurisdiction on appeal, not of the merits but merely for the purpose of
correcting the error of the lower court in entertaining the suit.”

Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (citation omitted); accord
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21 (1994).
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Even if this appeal is moot, then, this Court must determine whether the
district court had jurisdiction to issue its judgment. This Court must therefore
adjudicate the Plaintiffs’ standing. Because Plaintiffs lacked standing, the Court
must vacate the district court’s decision.
B.

Second, whether or not Plaintiffs have standing, this Court should

vacate the district court’s decision pursuant to United States v. Munsingwear, Inc.,
340 U.S. 36 (1950). Under Munsingwear and U.S. Bancorp, the vacatur question is
an “equitable” one, and vacatur is proper where “a court concludes that the public
interest would be served” thereby. U.S. Bancorp, 518 U.S. at 26, 29. When
mootness is due to actions of “the party who prevailed below,” vacatur is ordinarily
appropriate; conversely, when mootness is due to the “party seeking relief from the
judgment below,” vacatur is ordinarily not appropriate. Id. at 24, 25.
The Court’s Question 3 asks the parties to assume arguendo that DOJ’s change
in position has mooted the appeal. In other words, in light of the Executive’s current
agreement with the district court’s judgment invalidating the Act in its entirety, the
Executive (contrary to the argument above) is not injured by the judgment and has
no concrete interest in overturning it. Should the Court conclude that the appeal is
moot on that basis, it should treat DOJ as “the party who prevailed below” for
purposes of the vacatur analysis. Id. at 25. U.S. Bancorp’s holding that vacatur is
ordinarily appropriate when mootness is attributable to the party that prevailed
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below rests on the recognition that vacatur is necessary to prevent that party from
benefitting from a judgment that its own actions rendered unreviewable. That would
be precisely the situation here: the government’s change in position would have
mooted an appeal of a judgment with which the government agreed, and that it was
defending on appeal.
Even if this Court were to treat the government as the “party seeking relief
from the judgment below” for purposes of the vacatur analysis, U.S. Bancorp holds
that “exceptional circumstances” may justify vacatur even when mootness is
attributable to the party seeking relief. 513 U.S. at 29; accord Staley v. Harris Cty.,
Tex., 485 F.3d 305, 313 & n.4 (5th Cir. 2007) (en banc) (“public interest” may justify
vacatur). There can be no question that exceptional circumstances are present here,
and that the public interest compels vacatur. To leave the district court’s order in
place would be to countenance the invalidation of one of the most significant statutes
in U.S. history without any opportunity for appellate review. That would be
irreconcilable with the Judiciary’s responsibility to ensure that “the exercise of the
grave power of annulling an Act of Congress” is subject to searching appellate
review. United States v. Gainey, 380 U.S. 63, 65 (1965).
CONCLUSION
The Court has appellate jurisdiction over this case. If the Court concludes
otherwise, it should vacate the decision below.
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Respectfully submitted,
/s/ Donald B. Verrilli, Jr.
Donald B. Verrilli, Jr.
Douglas N. Letter
Elaine J. Goldenberg
General Counsel
Ginger D. Anders
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES Jonathan S. Meltzer
Rachel G. Miller-Ziegler
219 Cannon House Office Building
Jeremy S. Kreisberg
Washington, D.C. 20515
MUNGER, TOLLES & OLSON LLP
Tel: (202) 225-9700
1155 F. Street N.W., 7th Floor
Douglas.Letter@mail.house.gov
Washington, D.C. 20004-1361
Tel: (202) 220-1100
Fax: (202) 220-2300
Donald.Verrilli@mto.com
Elizabeth B. Wydra
Brianne J. Gorod
Brian R. Frazelle
Ashwin P. Phatak
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street N.W., Suite 501
Washington, D.C. 20036-2513
Tel: (202) 296-6889
elizabeth@theusconstitution.org
brianne@theusconstitution.org
Counsel for the U.S. House of Representatives 

 

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CERTIFICATE OF SERVICE
I hereby certify that on July 5, 2019, the foregoing document was filed with
the Clerk of the Court, using the CM/ECF system, causing it to be served on all
counsel of record.
Respectfully submitted,
/s/ Donald B. Verrilli, Jr.
Donald B. Verrilli, Jr.
 

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CERTIFICATE OF COMPLIANCE
1.

This document complies with the page limit of this Court’s June 26,

2019, briefing order because it does not exceed 15 pages.
2.

This document complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because the
document has been prepared in a proportionally spaced typeface using Microsoft
Word with 14 point, Times New Roman text and 12 point, Times New Roman
footnotes, pursuant to 5th Cir. R. 32.1.
Respectfully submitted,
/s/ Donald B. Verrilli, Jr.
Donald B. Verrilli, Jr.

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