Case 1:17-cv-01040-JDB-egb Document 1 Filed 03/13/17 Page 1 of 15 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

STATE OF TENNESSEE, by and

)

through the Tennessee General Assembly, )

TENNESSEE GENERAL ASSEMBLY, )

SENATOR JOHN STEVENS,

)

individually and in his official capacity )

as Member of the Tennessee Senate for )

the 24th Senatorial District, and

)

REPRESENTATIVE TERRI LYNN

)

WEAVER, individually and in her

)

official capacity as Member of the

)

Tennessee House of Representatives for )

the 40th House District,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT

)

OF STATE, REX TILLERSON, in his )

official capacity as United States

)

Secretary of State, BUREAU OF

)

POPULATION, REFUGEES, AND

)

MIGRATION, SIMON HENSHAW,

)

in his official capacity as Acting

)

Assistant Secretary of State for Population, )

Refugees, and Migration, UNITED

)

STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, )

THOMAS E. PRICE, in his official

)

capacity as Secretary of Health

)

Health and Human Services, OFFICE

)

OF REFUGEE RESETTLEMENT,

)

KEN TOTA, in his official capacity

)

as Acting Director of the Office of

)

Refugee Resettlement,

)

)

Defendants.

)

Case No. _____________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Plaintiffs the State of Tennessee, by and through the General Assembly, the General Assembly of the State of Tennessee, Senator John Stevens, individually and in his official capacity as Member of the Tennessee Senate for the 24th Senatorial District, and Representative Terri Lynn Weaver, individually and in her official capacity as Member of the Tennessee House of Representative for the 40th House District, hereby bring this complaint for declaratory and injunctive relief against the above-named defendants and in support thereof would respectfully show this Court as follows:
INTRODUCTION 1. This case seeks to protect and vindicate the fundamental constitutional status of the State of Tennessee as a sovereign entity not subject to unconstitutional coercion and commandeering by the federal government. 2. When the federal government exceeds its constitutional limits, courts are empowered to enjoin the federal government’s overreach. 3. Here, the federal government has violated both the United States Constitution’s Spending Clause and the Tenth Amendment by enacting and implementing 8 U.S.C. §§ 1612 and 1522(e)(7) as well as 45 C.F.R. § 400.301. These provisions purport to grant the federal government the authority to commandeer state funds to finance a federal program, namely, the resettlement of refugees within the United States pursuant to the U.S. Refugee Admissions Program. 4. Therefore, Plaintiffs respectfully request that this Court declare that the federal government has impermissibly intruded on Tennessee’s state sovereignty and order the federal government to abide by the restraints imposed by the United States Constitution.
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5. This suit is not intended to inflict harm on immigrants or refugees from any nation. Rather, this is a suit that seeks to preserve the constitutional relationship between the federal government and the states as mandated by our nation’s founders.
THE PARTIES 6. Plaintiff the State of Tennessee is the sixteenth state of the United States of America, having been admitted to the Union on June 1, 1796, and brings this suit by and through its General Assembly. A state has standing to sue the United States when the federal government deprives it of its status as a sovereign entity within our federal system or otherwise exceeds the limits set by the United States Constitution. As described more fully in the remainder of this complaint, Defendants have exceeded and, absent relief from this Court, will continue to exceed the powers granted to the federal government under the Spending Clause of the United States Constitution as well as the limits imposed upon the federal government by the Tenth Amendment, thereby infringing upon the constitutionally-protected sovereignty and powers of the State of Tennessee. The Tennessee General Assembly has standing to bring this action on behalf of the State of Tennessee pursuant to Tennessee Senate Joint Resolution 467 and the July 5, 2016 letter concerning said resolution authored by Tennessee Attorney General Herbert H. Slatery, III specifically delegating his constitutional and statutory authority to the General Assembly to commence litigation on behalf of the State of Tennessee and the General Assembly for the purpose of pursuing litigation challenging the constitutionality of the federal government’s refugee resettlement program and other issues raised by SJR 467. 7. Plaintiff the General Assembly of the State of Tennessee is vested by the Tennessee Constitution with the state’s legislative powers and is responsible for, among other things, appropriating state funds and enacting the state’s annual budget. See, e.g., Tenn. Const.
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art. II, § 24. As a result of the actions of Defendants described herein, the General Assembly has been deprived and, absent relief from this Court, will continue to be deprived of the ability to spend state funds in the manner the people of Tennessee may—through their elected legislators—deem most appropriate. More specifically, even though the state has duly withdrawn from the federal government’s refugee resettlement program, Defendants threaten to deprive the state of unrelated federal funding and are thereby unconstitutionally coercing the state into subsidizing the federal government’s refugee resettlement program.
8. Plaintiff Senator John Stevens is the duly elected member of the Tennessee Senate for the 24th Senatorial District. Senator Stevens is First Vice-Chair of the Senate’s Standing Committee on Finance, Ways and Means. Along with other matters, this committee is responsible for all measures relating to taxes and the raising of revenue, all measures dealing with the appropriation of state funds, general appropriations bills, and oversight of public monies in the state’s treasury. Moreover, Senator Stevens is Chairman of the Appropriations Subcommittee of the Senate’s Finance, Ways and Means Committee. This subcommittee decides which issues will be considered by the Finance, Ways and Means Committee. Senator Stevens resides in Carroll County, Tennessee, and his senatorial district includes Benton, Carroll, Gibson, Henry, Obion, and Weakley counties. The actions of the federal government that give rise to this case impede and interfere with Senator Stevens’s ability to fully discharge his duties as a member of the Tennessee General Assembly and as a leader on the Senate Standing Committee on Finance, Ways and Means.
9. Plaintiff Representative Terri Lynn Weaver is the duly elected member of the Tennessee House of Representatives for the 40th House District. Representative Weaver is Chairman of the House Transportation Subcommittee, which is charged with oversight of budget
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numbers related to transportation, and serves on the House Education Administration & Planning Committee. Representative Weaver resides in Smith County, Tennessee, and her house district includes Smith, DeKalb, Trousdale, and Sumner counties. The actions of the federal government that give rise to this case impede and interfere with Representative Weaver’s ability to fully discharge her duties as a member of the Tennessee General Assembly and as a leader and member of the committees on which she serves.
10. Defendant United States Department of State is a federal agency that administers the domestic refugee admissions program at issue in this case and that relies on state funds to implement said program.
11. Defendant Rex Tillerson is the United States Secretary of State and in that capacity is accountable for the division within the United States State Department that administers the domestic refugee admissions program.
12. Defendant Bureau of Population, Refugees, and Migration (“PRM”) is a federal agency within the U.S. State Department and has primary responsibility for formulating domestic policies regarding refugee resettlement and determining the domestic placement of refugees.
13. Defendant Simon Henshaw is Acting Assistant Secretary of State for PRM and, in that capacity, has responsibility for formulating and proposing domestic policies regarding refugee resettlement and determining the domestic placement of refugees.
14. Defendant United States Department of Health and Human Services (“HHS”) is a federal agency responsible for a variety of programs for eligible refugees through its Office of Refugee Resettlement. HHS provides partial support to refugee resettlement agencies and, through federal regulations, mandates that states, like Tennessee, provide additional funding for refugee resettlement needs.
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15. Defendant Thomas E. Price is Secretary of the United States Department of Health and Human Services and in that capacity is accountable for the division within HHS that mandates state funding of refugee resettlement.
16. Defendant Office of Refugee Resettlement (“ORR”) is a federal agency within HHS that facilitates the domestic placement of refugees within the State of Tennessee, as well as other locations in the United States, and orders local refugee resettlement offices to make referrals and assist in enrolling arriving refugees into the State of Tennessee’s Medicaid program, thereby shifting the funding of refugee medical costs to the state (instead of using federal funds that are available in a refugee medical assistance subsidy program).
17. Ken Tota is Acting Director of ORR and in that capacity facilitates the placement of refugees within the State of Tennessee and orders local refugee offices to make referrals and and assist in enrolling incoming refugees into the State of Tennessee’s Medicaid program, thereby shifting the funding of refugee medical costs to the state.
JURISDICTION AND VENUE 18. This Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346. 19. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. 20. Venue is properly laid in this Court under 28 U.S.C. § 1391(e)(1)(B) because a substantial part of the events giving rise to these claims occurred in the Western District of Tennessee and pursuant to 28 U.S.C. § 1391(e)(1)(C) on the basis of plaintiff party residency. Additionally, due to the location of certain events giving rise to these claims and plaintiff party
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residency, venue is proper in this Court’s Eastern Division under Western District Local Civil Rule 3.3(b).
FACTUAL BACKGROUND 21. In 1980, Congress enacted the Refugee Resettlement Act (“Act”), 8 U.S.C. § 1521 et seq. Since the program’s inception, proponents, supporters, and even drafters of the Act have recognized the significant financial impact the resettlement of refugees imposes on state budgets. 22. Senator Ted Kennedy, the leading sponsor of the Act, emphasized that the purpose for revamping refugee resettlement law was “to assure full and adequate federal support for refugee resettlement programs by authorizing permanent funding for state, local and volunteer agency projects.” Edward M. Kennedy, Refugee Act of 1980, 15 Int’l Migration Rev., no. 1/2, Spring-Summer 1981 at 141, 142 (emphasis added). 23. The United States House and Senate both recognized that, “[b]ecause the admission of refugees is a federal decision and lies outside normal immigration procedures, the federal government has a clear responsibility to assist communities in resettling refugees and helping them to become self-supporting.” Id. at 151. 24. Congress thus crafted the Act with the intention that “[s]tate and local agencies . . . not be taxed for programs they did not initiate and for which they were not responsible” and instead that the federal government alone should be “responsible” for funding its own program. Id. (emphasis added). 25. During debate leading up to passage of the Act, Senator Kennedy outlined three categories of assistance—cash, medical, and social services—explaining that “[t]hese three types of Federal assistance are provided through a 100-percent reimbursement to the States for all
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refugees who do not qualify for the regular AFDC-Medicaid programs. For those who do qualify for the regular programs, the funds cover the State’s portion of payment for these services.” 125 Cong. Rec. 23234 (Sept. 6, 1979).
26. The Act, as passed by Congress, authorized thirty-six (36) months of full reimbursement to a state for the cost of each refugee resettled and participating in certain benefit programs. States received a 100% reimbursement of their costs under the Aid to Families with Dependent Children and Medicaid programs with respect to each participating refugee. Additionally, the federal government provided separate financial assistance for refugees not eligible for benefits under these programs.
27. Federal funds initially supported the federal government’s refugee resettlement program, but eventually federal reimbursements to the states were reduced and, by 1991, eliminated entirely. States thereby became responsible for costs of the program.
28. Reports to Congress from the United States Government Accountability Office and ORR have acknowledged that costs of the federal refugee resettlement program have been transferred from the federal government to the states.
29. Upon information and belief, in 2015, the State of Tennessee spent over $31 million state dollars to support the federal refugee resettlement program through TennCare.
30. Furthermore, to avoid spending federal funds set aside for refugee medical assistance and to shift more of the program costs onto the states, federal regulations mandate that state refugee resettlement offices first determine if a refugee is eligible for Medicaid. Consequently, states, like Tennessee, are forced to pay a significant portion of these costs from state tax dollars. 45 C.F.R. § 400.94. It is only after the refugee resettlement agency determines that a refugee is not eligible for Medicaid under the State plans that the agencies determine
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eligibility for the fully federally funded Refugee Medical Assistance (“RMA”) program. 45 C.F.R. § 400.94(d).
31. Though some states still voluntarily participate in the refugee resettlement program to place refugees, a growing number of states are exercising their right under the relevant regulations to withdraw from the refugee resettlement program.
32. At one time, the State of Tennessee voluntarily participated in the refugee resettlement program. In 2007, however, due to mounting program costs that were not covered by the federal government, Tennessee elected to withdraw from the program pursuant to 45 C.F.R. § 400.301. Accordingly, by letter dated October 29, 2007, the State of Tennessee notified ORR of its intent to withdraw from the refugee resettlement program effective June 30, 2008.
33. Despite Tennessee notifying the federal government that it declined to further implement, fund, or participate in the federal refugee resettlement program, the federal government—through various regulations and statutes—coerced the state to continue funding the refugee resettlement program by threatening the state with the loss of federal Medicaid funding. Furthermore, in direct violation of constitutional principles of state sovereignty, the federal government bypassed the decision of Tennessee’s elected representatives and mobilized a private agency to assume control and direction of the refugee resettlement program in Tennessee. As a result, the federal government nullified the decision of the people of Tennessee to withdraw from an ostensibly voluntary federal program and thereby commandeered state funds to support a federal initiative.
34. In Tennessee, the Medicaid program, known as TennCare, is jointly funded by Tennessee and the federal government.
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35. In 2016, the federal contribution to TennCare amounted to nearly $7 billion (estimated $6,858,799,000.00), which represented approximately 20% of Tennessee’s total overall budget for the fiscal year. From 2008, when Tennessee withdrew from the refugee resettlement program, until 2016, the federal contribution to Medicaid ranged from over $4 billion ($4,566,651,300.00) to nearly $7 billion and has represented 17% to 21% of Tennessee’s budget. During that same time, the federal government has resettled more than 13,000 refugees within Tennessee.
36. Under 8 U.S.C. §§ 1612 and 1641, the State of Tennessee is mandated to provide TennCare to help fund the refugee program or risk losing the federal contribution to TennCare.
37. Unlike the vast majority of immigrants, those individuals deemed “refugees” under federal law may apply for Medicaid programs immediately upon arrival to the United States. Thus, when a refugee enrolls in Medicaid, the federal government shifts a substantial part of the costs of the federal refugee resettlement program onto the states, including those states (like Tennessee) that have withdrawn from further voluntary participation in the program.
38. Instead of honoring Tennessee’s decision to withdraw from further participation in the federal refugee resettlement program, the federal government bypassed the state government and appointed a private organization, Catholic Charities of Tennessee, to continue the program—even though federal regulations specifically permitted ORR to discontinue resettlement of refugees in Tennessee rather than continue resettlement through use of a private designee.
39. Catholic Charities of Tennessee subsequently established an entity referred to as the Tennessee Office for Refugees (“TOR”) whose primary purpose was and is to replace the
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state and continue the federal refugee resettlement program in Tennessee, notwithstanding the state’s desire to withdraw from the program.
40. TOR is federally contracted to disburse federal funds to local resettlement offices in Tennessee, monitor the resettlement of refugees by local resettlement agencies operating in the state, and establish policies and procedures for the local resettlement agencies consistent with directives from ORR.
41. According to TOR’s State of Tennessee Refugee Services Plan and Refugee Program Policy and Procedures Manual, an “eight month subsidy” for federal refugee medical assistance is only available to refugees ineligible for or denied enrollment into TennCare. As a result, the State of Tennessee is forced to expend substantial amounts of state taxpayer money to fund the resettlement program, even though Tennessee has ostensibly withdrawn from the program.
42. If Tennessee refuses to expend state funds to provide these refugee services through Medicaid, the state is subject to a loss of nearly $7 billion, representing 20% of its total state budget, under 42 U.S.C. § 1396c.
43. The United States Supreme Court has held that “[t]he threatened loss of over 10 percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real option,” and therefore exceeds the constitutional bounds of Congress’s power under the Constitution’s Spending Clause. NFIB v. Sebelius, 132 S. Ct. 2566, 2605 (2012).
44. Here, operation of the federal refugee resettlement program commandeers Tennessee’s funds through Medicaid with the threatened loss of nearly $7 billion, amounting to 20% of its overall state budget—money that is needed to fund services that are critical to the health and welfare of countless Tennesseans.
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45. The conditions set by the federal government that compel the State of Tennessee to permit individuals in the refugee resettlement program access to Medicaid are not germane to the operation or functioning of the state’s Medicaid program as a whole.
46. The effect of the federal government’s actions is to deprive Tennessee of its sovereignty and regulate it in its sovereign capacity.
47. The refugee resettlement program also commandeers other state funds and instrumentalities through health and welfare programs and public schooling, including the program known as “English Language Learners,” as mandated by 20 U.S.C. § 1703.
48. The federal government therefore carries out its refugee resettlement program through economic dragooning of state funds and instrumentalities, which is impermissible under the Tenth Amendment to the United States Constitution and in excess of the federal government’s powers under the Constitution’s Spending Clause.
COUNT I: Violation of the Spending Clause and Tenth Amendment 49. The allegations of paragraphs 1 through 48 are re-alleged and incorporated herein by reference. 50. The United States Constitution does not confer upon the federal government the power to direct expenditure of state funds to support a federal program and, moreover, prevents the federal government from regulating a state in its sovereign capacity. 51. The federal government is prohibited from using its power under the Spending Clause, U.S. Const., art I, § 8, cl. 1, to coerce states into supporting federal programs with state moneys.
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52. While the federal government may offer incentives to states, conditions on spending that threaten a state with the loss of significant federal funds must not be so coercive as to amount to unconstitutional compulsion.
53. When the federal government threatens the loss of the federal contribution to Medicaid, or “over 10 percent of a state’s overall budget,” such action violates the Tenth Amendment to the United States Constitution and is not supported by the Spending Clause.
54. Here, Plaintiffs are threatened under 42 U.S.C. § 1396c with the loss of nearly $7 billion, amounting to 20% of Tennessee’s overall state budget, unless the State of Tennessee continues to support the federal refugee resettlement program by funding healthcare for refugees enrolled in TennCare, its state Medicaid program.
55. Plaintiffs are also forced to support the federal refugee resettlement program by expending funds and making available state instrumentalities through other programs, such as public schooling and English Language Learner services.
56. The actions described above unconstitutionally deprive the State of Tennessee of its sovereignty and regulate the state’s actions as a sovereign.
57. The state funds commandeered to support the federal government’s refugee resettlement program deprive Plaintiffs of scarce financial resources that are critical for protecting the welfare, health, and safety of all Tennesseans.
58. Additionally, because the State of Tennessee is not consulted or informed of the number of refugees that will be resettled within its borders, the state is left without vital information to properly budget and appropriate its funds.
59. Accordingly, in order to ensure that states are in fact “independent and sovereign bodies” it is proper to enter judgment declaring that the federal government’s actions are in
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violation of the Tenth Amendment in that they coerce the State of Tennessee to support a federal program with state moneys and instrumentalities and declaring further that such actions exceed the powers of the federal government under the Constitution’s Spending Clause.
60. An actual controversy exists between the parties about the legality of the federal government’s actions as described in this complaint.
61. A declaratory judgment is necessary and appropriate as it would serve a useful purpose in clarifying and settling the legal issues between the parties and thereby afford relief from the uncertainty and controversy giving rise to this proceeding.
62. Plaintiffs will suffer significant and irreparable harm unless this Court intervenes. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court award the following relief: 1. That a declaratory judgment be entered pursuant to 28 U.S.C. § 2201 et seq. declaring
that Defendants have exceeded the federal government’s powers under the Spending Clause and violated the Tenth Amendment; 2. That Defendants be preliminarily and permanently enjoined from resettling additional refugees within the State of Tennessee unless and until the United States government pays for such resettlement and absorbs all costs for the resettlement program that are currently being incurred by the State of Tennessee; 3. That further preliminary and permanent injunctive relief be granted (a) compelling Defendants to comply with the Spending Clause and the Tenth Amendment with respect to refugee resettlement; and (b) compelling the United States government to fund refugee resettlement from federal dollars and without any involuntary contribution from the State of Tennessee;
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4. That Plaintiffs recover their costs and attorneys’ fees, as allowed by law; and 5. That Plaintiffs receive such other and further relief as this Court may deem just and
proper. Respectfully submitted, this the 13th day of March, 2017.
THOMAS MORE LAW CENTER /s/Richard Thompson Richard Thompson, Michigan Bar No. P21410 Kate Oliveri, Michigan Bar No. P79932 24 Frank Lloyd Wright Drive Suite J 3200 Ann Arbor, Michigan 48106 (734) 827-2001 rthompson@thomasmore.org koliveri@thomasmore.org MILLBERG GORDON STEWART PLLC /s/B. Tyler Brooks B. Tyler Brooks, Tennessee BPR No. 025291 1101 Haynes Street, Suite 104 Raleigh, North Carolina 27604 (919) 836-0090 tbrooks@mgsattorneys.com Attorneys for Plaintiffs
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 </s> Case 1:17-cv-01040-STA-egb Document 24 Filed 06/01/17 Page 1 of 3 PageID 169

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

(Eastern Division)

_______________________________________

)

STATE OF TENNESSEE, by and through )

the Tennessee General Assembly, et al., )

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-01040-STA-egb

)

UNITED STATES DEPARTMENT OF

)

STATE, et al.,

)

)

Defendants.

)

_______________________________________)

DEFENDANTS’ MOTION TO DISMISS

Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), Defendants the U.S.

Department of State; Rex Tillerson, in his official capacity as Secretary of State; State

Department Bureau of Population, Refugees, and Migration (“PRM”); Simon Henshaw, in his

official capacity as Acting Assistant Secretary of State for PRM; the U.S. Department of Health

and Human Services (“HHS”); Thomas E. Price, in his official capacity as Secretary of HHS;

HHS Office of Refugee Resettlement (“ORR”); and Ken Tota, in his official capacity as Acting

Director of ORR, hereby move to dismiss Plaintiffs’ Complaint for Declaratory and Injunctive

Relief (ECF No. 1), for lack of subject-matter jurisdiction, or in the alternative for failure to state

a claim on which relief can be granted.

The grounds on which Defendants’ motion is based are set forth in the accompanying

Memorandum of Facts and Law in Support of Defendants’ Motion to Dismiss. For the reasons

set forth therein, Defendants’ motion should be granted and this case dismissed, with prejudice.

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Dated: June 1, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
LAWRENCE J. LAURENZI Acting United States Attorney
JENNIFER D. RICKETTS Director
SHEILA M. LIEBER Deputy Director
/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel
STUART J. ROBINSON Trial Attorney
United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 6102 Washington, D.C. 20530 Tel: 202-514-3358 E-mail: james.gilligan@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE Pursuant to LR 7.2(a)(1), I hereby certify that on June 1, 2017, I served the foregoing Defendants’ Motion to Dismiss on all counsel of record by filing it with the Court by means of its Electronic Case Filing system.
/s/ James J. Gilligan James J. Gilligan Counsel for Defendants

 </s> Case 1:17-cv-01040-STA-egb Document 25 Filed 06/02/17 Page 1 of 4 PageID 246

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

STATE OF TENNESSEE, et al.
Plaintiffs,
v.
U.S. DEPARTMENT OF STATE, et al.,
Defendants,
v.
TENNESSEE IMMIGRANT AND REFUGEE RIGHTS COALITION, on behalf of itself and its members, BRIDGE REFUGEE SERVICES, INC., and NASHVILLE INTERNATIONAL CENTER FOR EMPOWERMENT,
Intervenor-Defendants.

) ) ) No. 1:17-cv-01040-STA-egb ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

INTERVENOR-DEFENDANTS’ MOTION TO INTERVENE

Intervenor-Defendants Tennessee Immigrant and Refugee Rights Coalition, on behalf of

itself and its members, Bridge Refugee Services Inc., and Nashville International Center for

Empowerment, by and through their counsel of record, hereby move to intervene as defendants

pursuant to Federal Rule of Civil Procedure 24(a) and (b). This motion is supported by the

memorandum of facts and law also filed on this date.

Dated: June 2, 2017

Respectfully submitted,

/s/ Thomas H. Castelli_________ Thomas H. Castelli, BPR#024849 Legal Director ACLU Foundation of Tennessee

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P.O. BOX 120160 Nashville, TN 37212 615.320.7142 tcastelli@aclu-tn.org
/s/ Cody H. Wofsy_________ Cody H. Wofsy* American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 cwofsy@aclu.org
Omar C. Jadwat* American Civil Liberties Union Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2600 Fax: (212) 549-2654 ojadwat@aclu.org
Attorneys for Intervenor-Defendants *Application for admission pro hac vice forthcoming

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CERTIFICATE OF CONSULTATION Pursuant to Local Rule 7.2(a)(1)(B), I certify as follows: Cody Wofsy, an attorney representing the Intervenor-Defendants, emailed Defendants’ counsel, James Jordan Gilligan and Stuart Justin Robinson, at 12:05 p.m. CDT on May 31, 2017, proposing to confer by phone on June 1, 2017, at 1:00 p.m. Defendants’ counsel responded that they were unavailable at that time because of the deadline to file Defendants’ motion to dismiss, and counsel for IntervenorDefendants and Defendants agreed to confer by phone on June 2, 2017. After consultation at that time, Defendants’ counsel informed Intervenor-Defendants’ counsel that Defendants are not able to take a position on the instant motion at this time. Mr. Wofsy also emailed Plaintiffs’ counsel, Brennan Tyler Brooks, Richard Thompson, and Kate Margaret Oliveri, at 12:05 p.m. CDT on May 31, 2017, proposing to confer by phone on June 1, 2017, at 12:00 p.m. CDT; or, if that time was inconvenient, at another time on May 31 or June 1. Intervenor-Defendants’ counsel offered in subsequent emails to confer any time May 31, June 1, or the morning of June 2, or to confer by email. Plaintiffs’ counsel informed Intervenor-Defendants’ counsel that they were unavailable to confer by phone at any time before June 5 and did not respond to the offer to confer by email. Intervenor-Defendants’ counsel advised Plaintiffs’ counsel on June 1 at 11:02 a.m. CDT that they would file the instant motion today in the interests of timeliness, but agreed to consult with Plaintiffs’ counsel on June 5 at 11:00 a.m. CDT and relay the outcome of that consultation to the Court. Intervenor-Defendants’ counsel has not yet received a response to that email.
/s/ Thomas H. Castelli_________ Thomas H. Castelli

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CERTIFICATE OF SERVICE
I hereby certify that on June 2, 2017, a true and correct copy of the foregoing document
has been served via ECF to:
Counsel for Plaintiffs:
Brennan Tyler Brooks MILLBERG GORDON STEWART PLLC 1101 Haynes St. Suite 104 Raleigh, NC 27604
Richard Thompson THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106
Kate Margaret Oliveri THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106
Counsel for Defendants:
James Jordan Gilligan U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, N.W. Room 6102 Washington, DC 20530
Stuart Justin Robinson U.S. Department of Justice, Civil Division Federal Programs Branch 450 Golden Gate Ave. San Francisco, CA 94102
/s/ Thomas H. Castelli_________ Thomas H. Castelli

 </s> Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 1 of 41 PageID 909

IN THE UNITED DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
(Eastern Division)

STATE OF TENNESSEE, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF STATE, et al.,
Defendants.

No. 1:17-cv-01040-STA-egb

RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................2 I. THIS COURT HAS SUBJECT MATTER JURISDICTION TO HEAR
CONSTITUTIONAL CHALLENGES TO STATUTES. ...................................................2 A. Plaintiffs Have Standing To Protect The Rights Of The General Assembly And
State of Tennessee....................................................................................................2 1. The State Legislators Have Standing To Protect The Rights Of The General
Assembly. .....................................................................................................3 2. The General Assembly Has Standing To Ensure It Can Properly Exercise
Its Authority Under The State and Federal Constitutions. ..........................5 3. The General Assembly May Bring Suit On Behalf Of The State..................9 B. Plaintiffs’ Claim Is Ripe For Review Because This Case Presents A Concrete Legal Issue And Plaintiffs’ Would Suffer Significant Hardship From Delay. ................13 C. Plaintiffs’ Suit Is Not Precluded As The Medicaid Statute Is Inapplicable...........17 II. PLAINTIFFS PLAUSIBLY ALLEGE THAT THE REFUGEE RESETTLEMENT PROGRAM VIOLATES THE CONSTITUTION. ...........................................................18 A. The Spending Clause And Tenth Amendment Work Together To Protect States From Being Commandeered Into Supporting Federal Government Programs. ....18 B. Contrary To Defendants’ Argument, The Federal Government Is In Fact Requiring That The States Fund The Refugee Resettlement Program. .................22 C. Plaintiffs Here Merely Seek To Have The Federal Government Absorb The Costs That It Is Currently Passing On To States Like Tennessee. ..................................23 1. This Lawsuit Does Not Seek To Interfere With The Federal Government’s
Powers, Nor Does It Seek To Discriminate Against Any Person. .............23 2. Defendants Incorrectly And Improperly Argue That The Refugee
Resettlement Act Conserves State Funds. ..................................................25 D. This Case Falls Squarely Within And Is Controlled By NFIB v. Sebelius. ...........27
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Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 3 of 41 PageID 911 CONCLUSION ..............................................................................................................................32 REQUEST FOR ORAL ARGUMENT .........................................................................................32 CERTIFICATE OF SERVICE ......................................................................................................34
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TABLE OF AUTHORITIES

Cases

Page(s)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ................................................................................................... 12-13, 16

ACLU v. Grayson County, 591 F.3d 837 (6th Cir. 2010) .................................................................................................... 3

Ada v. Guam Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011 (1992) ............................................................................................................. 18

Alaska Legis. Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999) ................................................................................................ 8

Alden v. Me., 527 U.S. 706 (1999) ......................................................................................................... 26-27

Anderson v. Dunn, 19 U.S. 204 (1821) ................................................................................................................. 10

Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) .................................................................................................... passim

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) ............................................................................................................... 18

Baird v. Norton, 266 F.3d 408 (6th Cir. 2001) .................................................................................................... 8

Bassett v. NCAA, 528 F.3d 426 (6th Cir. 2008) .................................................................................................. 25

Bowsher v. Synar, 478 U.S. 714 (1986) ................................................................................................................. 3

Bragg v. W. Va. Coal Ass’n, 248 F.3d 275 (4th Cir. 2001) .................................................................................................. 27

City of Boerne v. Flores, 521 U.S. 507 (1997) ............................................................................................................... 23

Coleman v. Miller, 307 U.S. 433 (1939) ............................................................................................................. 5, 6

Coll. Sav. Bank v. Fla. Prepaidpostsecondary Ed. Expense Bd., 527 U.S. 666 (1999) ............................................................................................................... 23

Eiswert v. United States, 619 F. App’x 483 (6th Cir. 2015) ........................................................................................... 12

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Ellison v. Balinski, 625 F.3d 953 (6th Cir. 2010) .................................................................................................. 26
Elrod v. Burns, 427 U.S. 347 (1976) ......................................................................................................... 15-16
FERC v. Mississippi, 456 U.S. 742 (1982) ............................................................................................................... 19
Florida v. U.S. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011) ............................................................................ 14, 17
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ............................................................................................................... 18
Gilbreath v. Willett, 148 Tenn. 92, 251 S.W.2d 910 (1922) ................................................................................... 11
Graham v. Richardson, 403 U.S. 365 (1971) ............................................................................................................... 24
Grand T.W.R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984) .................................................................................................. 31
Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................................................................................... 18
Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981) ............................................................................................................... 19
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .......................................................................................................... 3, 9
Karcher v. May, 484 U.S. 72 (1987) ................................................................................................................... 4
Kardules v. City of Columbus, 95 F.3d 1335 (6th Cir. 1996) .................................................................................................. 14
Kerr v. Hickenlooper, 824 F.3d 1207 (10th Cir. 2016) ................................................................................................ 7
Mayhew v. Burwell, 772 F.3d 80 (1st Cir. 2014) ............................................................................................... 28, 29
Medellin v. Texas, 552 U.S. 491 (2008) ............................................................................................................... 19
Morrison v. Olson, 487 U.S. 654 (1988) ............................................................................................................... 10
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Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ....................................................................................................... passim
Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999 (6th Cir. 2006) .................................................................................................. 12
New York v. United States, 505 U.S. 144 (1992) ....................................................................................... 18-19, 19, 24, 30
Plough, Inc. v. Allergan, Inc., 741 F. Supp. 144 (W.D. Tenn. 1990) ..................................................................................... 31
Poindexter v. Greenhow, 114 U.S. 270 (1885) ............................................................................................................. 3, 9
Printz v. United States, 521 U.S. 898 (1997) ....................................................................................................... passim
Raines v. Byrd, 521 U.S. 811 (1997) ......................................................................................................... 5, 6, 7
Richardson v. Bd. of Dentistry, 913 S.W.2d 446 (1995) ........................................................................................................... 10
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006) ................................................................................................................... 3
South Dakota v. Dole, 483 U.S. 203 (1987) ......................................................................................................... 20, 24
Sporhase v. Neb., 458 U.S. 941 (1982) ................................................................................................... 14-15, 15
Steward Mach. Co. v. Davis, 301 U.S. 548 (1937) ............................................................................................................... 20
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010) ............................................................................................................... 13
Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011) .................................................................................................... 3
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ............................................................................................................... 17
U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2015) ............................................................................................ 8
United States v. Am. Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976) ...................................................................................... 3, 4, 5, 8
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United States v. Lopez, 514 U.S. 549 (1995) ............................................................................................................... 18
United States v. Mardis, 670 F. Supp. 2d 696 (W.D. Tenn. 2009) ................................................................................ 10
United States v. Windsor, 133 S. Ct. 2675 (2013) .............................................................................................................. 9
Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) .................................................................................................. 12
Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997) ............................................................................................ 17, 18
Constitutional Provisions Tenn. Const. art. II, § 2 ................................................................................................................ 10 Tenn. Const. art. II, § 24 ........................................................................................................ 10, 31 Tenn. Const. art. III, § 18 ............................................................................................................. 11 Tenn. Const. art. VI, § 5 ................................................................................................................. 9 U.S. Const. amend. X ........................................................................................................... 6-7, 18 U.S. Const. amend. XIV, § 1 ....................................................................................................... 24 U.S. Const. art. I, § 8, cl. 4 ........................................................................................................... 23 U.S. Const. art. III .......................................................................................................................... 2
Statutes 8 U.S.C. § 1182(a)(4)(A) ....................................................................................................... 22, 26 8 U.S.C. § 1601(1) ....................................................................................................................... 22 8 U.S.C. § 1601(1)(A) .................................................................................................................. 22 8 U.S.C. § 1612(a)(2)(A)(i) ................................................................................................... 22, 24 8 U.S.C. § 1613(a) ................................................................................................................. 22-23 42 U.S.C. § 1316 .......................................................................................................................... 16 42 U.S.C. § 1396a(a)(10) ............................................................................................................. 20 42 U.S.C. § 1396a(a)(10)(A)(i) .................................................................................................... 20 42 U.S.C. § 1396c ................................................................................................................ passim
Rules and Regulations 45 C.F.R. § 400.94 ....................................................................................................................... 25 45 C.F.R. § 400.94(c) ............................................................................................................. 22, 24 45 C.F.R. §§ 400.94(b)-(c) ........................................................................................................... 13
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45 C.F.R. § 400.301 ..................................................................................................................... 28 Tenn. Sup. Ct. R. 23, § 1 .............................................................................................................. 12

Other

“Arrivals by State and Nationality as of June 30, 2017” (FY 1975 through 30 June 2017), U.S. Dept. of State (2017), available at http://www.wrapsnet.org/admissions-and-arrivals/ ................29

Tennessee

General

Assembly,

SJR

0467,

available

at

http://www.capitol.tn.gov/Bills/109/Bill/SJR0467.pdf....................................................................5

Tennessee General Assembly, SJR0467 Bill History, available at http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SJR0467&ga=109 .................7

USCIS Policy Manual, Vol. 7, Part L, Chapter 1.B.......................................................................29

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INTRODUCTION Defendants’ motion to dismiss seems to miss the entire point of Plaintiffs’ complaint and the allegations contained therein. Plaintiffs’ complaint alleges that the federal mandates that Plaintiffs expend State funds to cover refugees through Medicaid and other programs1 violate the Constitution’s Spending Clause and the Tenth Amendment by commandeering State funds and coercing the State to expend funds to support and maintain a federal program. This interferes with Plaintiffs’ duty and right to appropriate State funds. It is irrelevant to this suit whether the federal government would withhold all Medicaid funds if Tennessee enacted a plan that did not cover refugees as (1) the mere threat to withhold the funding is impermissible coercion; and (2) Defendants assert that any attempt by Plaintiffs to withhold funding would violate the Constitution. Finally, Plaintiffs do not seek to have a Medicaid plan reviewed to see if it complies with the federal Medicaid requirements. Plaintiffs readily admit—and Defendants agree—that refusal to expend State funds to support refugee medical assistance would violate current federal statutes and regulations. Plaintiffs, instead, seek to have the Medicaid requirements reviewed to determine if they comply with the Constitution. This reviewal is well within the purview of the district court. Plaintiffs’ complaint presents an “as applied” challenge to the manner in which the federal refugee resettlement program and provisions of the Medicaid Act are being applied to Tennessee after its attempted withdrawal from the refugee resettlement program. Federal Medicaid dollars are being used to coerce the State of Tennessee into expanding the Medicaid program to support the resettlement of refugees. This allows the federal government to “solve” the problem of refugee resettlement by passing the costs of its work onto States, like Tennessee. The federal government
1 Defendants’ brief completely ignores the allegations of all significant expenditures besides Medicaid from State funds necessary to support the federal refugee program. (Pls.’ Compl. ¶ 47).
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does this by giving refugees preferred status and eligibility for Medicaid over other immigrants. Unlike almost all other immigrants, there is no requirement that refugees make a showing of selfsufficiency. Instead, refugees are mandated by the federal government to be immediately eligible for Medicaid and other welfare services.
Defendants go beyond the four corners of Plaintiffs’ complaint to suggest that the federal government conserves State funds because refugees are limited to seven years of Medicaid. But Plaintiffs’ complaint, the allegations of which must be accepted as true, alleges that the resettlement of refugees costs the State $31 million per year. Even still, any such potential saving does not give the federal government the right to unconstitutionally commandeer State funds. The Supreme Court’s decision in NFIB v. Sebelius squarely governs the issue here. Throughout the years, through expansion of both the Medicaid program and the refugee resettlement program, the federal government has increased the financial burden refugees place on the States. The Supreme Court already determined that forcing States to acquiesce to expansion of joint federal-State programs with coercive threats of withholding federal Medicaid funds violates the Spending Clause and the Tenth Amendment. Therefore, Defendants’ motion to dismiss should be denied.
ARGUMENT I. THIS COURT HAS SUBJECT MATTER JURISDICTION TO HEAR
CONSTITUTIONAL CHALLENGES TO STATUTES. A. Plaintiffs Have Standing To Protect The Rights Of The General Assembly And
State of Tennessee. Article III of the Constitution requires plaintiffs to have standing to sue as part of the caseor-controversy limitation on federal jurisdiction. Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663 (2015). Plaintiffs satisfy the standing requirement when they allege “injury in the form of invasion of a legally protected interest that is concrete and particularized
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and actual or imminent.” Id. (internal quotation marks omitted). This injury “also must be fairly traceable to the challenged action and redressable by a favorable ruling.” Id. (internal quotation marks omitted). Only one party need have standing to satisfy Article III. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”); Bowsher v. Synar, 478 U.S. 714, 721 (1986); ACLU v. Grayson Cty., 591 F.3d 837, 843 (6th Cir. 2010) (“The presence of one party with standing is sufficient.”); Thomas More Law Ctr. v. Obama, 651 F.3d 529, 535 (6th Cir. 2011) (same) (overruled in part on other grounds).
1. The State Legislators Have Standing To Protect The Rights Of The General Assembly.
“[A] State is a political corporate body [that] can act only through agents [.]” Poindexter v. Greenhow, 114 U.S. 270, 288 (1885). Thus, to vindicate its interests, “a State must be able to designate agents to represent it in federal court.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2664 (2013). “[S]tate law may provide for [] officials to speak for the State in federal court.” Id. When a legislative body “as a whole has standing . . . [it] can designate a member to act on its behalf.” United States v. Am. Tel. & Tel. Co., 551 F.2d 384, 391 (D.C. Cir. 1976).
In American Telephone, a U.S. House of Representatives subcommittee issued a subpoena requiring a telephone company to turn over records in an investigation of warrantless wiretaps issued by the FBI. 551 F.2d 384, 385-86 (D.C. Cir. 1976). The Justice Department filed suit against the telephone company seeking to enjoin it from turning over the records. Id. at 388. A member of the House of Representatives intervened as a defendant on his own behalf and on behalf of the Committee and House. Id. at 391. The district court ruled against the defendants and the congressman appealed. Id. at 388, 391. The court held that the congressman had standing to appeal
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because “[i]t [was] clear that the House as a whole ha[d] standing . . . and [could] designate a member to act on its behalf.” Id. at 391.
Likewise, in Karcher v. May, the New Jersey Attorney General announced that he would not defend a statute enacted by the New Jersey Legislature. 484 U.S. 72, 75 (1987). The Speaker of the New Jersey General Assembly and the President of the New Jersey Senate then intervened on behalf of the legislature as named defendants only in their official capacities as Speaker and President. Id. at 75-76. The district court and appellate court ruled against the defendants and, subsequently, the defendants lost their positions as Speaker and President. Id. at 77. They then sought review by the Supreme Court. Id. The Supreme Court held that the legislators no longer had standing only because they no longer held the official positions in which they intervened. Id. As the legislators intervened solely in their official capacities as Speaker and President, the authority to pursue the lawsuit belonged to their successors in office, who were individual legislators. Id.
The Supreme Court reaffirmed its holding that individual legislators have standing in their official capacities to sue on behalf of the legislative body in Hollingsworth. There, the Court stated that authorized State officers in their official capacities have standing. Id. at 2665; see also id. at 2666 (“We recognized that a legislator authorized by state law to represent the State’s interest may satisfy standing requirements . . . .”).
Here, after the General Assembly passed Senate Joint Resolution 467 (“SJR 467”), which authorized the Speaker of the Senate and the Speaker of the House to “commence a civil action” challenging the refugee resettlement program, Senator Stevens and Representative Weaver were appointed by the Speaker of the Senate and the Speaker of the House, respectively, to represent each body in this lawsuit. (Ex. A: Stevens Decl. ¶ 3; Ex. B: Weaver Decl. ¶ 3). The General
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Assembly “as a whole has standing” so it “can designate [Senator Stevens and Representative

Weaver] to act on its behalf.” Am. Tel., 551 F.2d at 391; infra Part I.A.2.

2. The General Assembly Has Standing To Ensure It Can Properly Exercise Its Authority Under The State and Federal Constitutions.

There is a clear distinction in the Supreme Court and across the Circuits between instances

where legislatures have standing to sue on behalf of the legislative institution and instances where

legislatures do not. This distinction boils down to pure numbers. Legislators have standing to sue

on behalf of the legislative body where 51% of the members of the legislative body vote to

authorize the lawsuit. Here, an overwhelming majority of both the Tennessee Senate and the

Tennessee House of Representatives voted to pass SJR 467, which authorized this action.

Tennessee

General

Assembly,

SJR

0467,

available

at

http://www.capitol.tn.gov/Bills/109/Bill/SJR0467.pdf (last accessed July 14, 2017) (attached at

Exhibit C).

In Arizona State Legislature, the Arizona Legislature challenged an amendment to the State

constitution that removed redistricting authority from the Legislature and vested the authority in

an independent body. 135 S. Ct. at 2660-61. In holding that the Arizona Legislature had standing,

the Court emphasized that, since the Plaintiff-Legislature had a sufficient number of votes to defeat

or enact a provision impacted by the constitutional amendment, the Arizona Legislature suffered

sufficient harm to their legislative authority to assert Article III standing. Id. at 2665. In reaching

this decision, the Court noted that “[the Arizona Legislature] commenced [the] action after

authorizing votes in both of its chambers.” Id. at 2664.

In reaching this decision, the Supreme Court analyzed two prior cases, Coleman v. Miller,

307 U.S. 433 (1939) and Raines v. Byrd, 521 U.S. 811 (1997). In Coleman, the Kansas Legislature

filed an action after the Kansas Senate had a tie vote and the Kansas Lieutenant Governor cast the

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deciding vote that passed a proposed constitutional amendment. Coleman, 307 U.S. at 435. Twenty-one (twenty who voted against the amendment and one who voted for the amendment) of forty Kansas Senators filed suit challenging the ability of the Lieutenant Governor to cast the deciding vote and the defendants attempted to dismiss the suit for lack of standing. Id. at 438. The Supreme Court held that the challenging majority of the Kansas Senators had standing because there was a sufficient number of Senators “whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment.” Id. at 446; see also id. at 438 (“[T]he plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.”).
In contrast, in Raines, six members of Congress attempted to challenge the constitutionality of an Act passed by Congress. Raines, 521 U.S. at 814. The Court held that the six members of Congress lacked standing because “their votes were given full effect. They simply lost that vote.” Id. at 824.
Here, both bodies of the General Assembly passed SJR 467 authorizing suit and alleging deprivation and nullification of their legislative power. For example, Plaintiffs allege throughout their complaint that the federal refugee resettlement program and the mandates to fund programs and healthcare for refugees through Medicaid completely nullify the General Assembly’s votes to appropriate State funds as is its right and obligation under the Tennessee Constitution. (Pls.’ Compl. ¶¶ 7, 8, 9, 30, 33, 34, 36, 44, 47, 48; see also Ex. A: Stevens Decl. ¶ 2; Ex. B: Weaver Decl. ¶ 2). In fact, the underlying cause of action itself—the Tenth Amendment to the United States
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Constitution—indicates that the Defendants are infringing on the State’s sovereignty and

nullifying the power of the State.

The distinction between Coleman and Raines is having the number of “legislators whose

votes would have been sufficient to defeat (or enact) a specific legislative Act” instead of just “six

individual Members of Congress.” Ariz. State Legis., 135 S. Ct. at 2665, 2664 (emphasis in

original). Defendants somehow attempt to analogize this case with Raines, rather than Arizona

State Legislature and Coleman. But this attempt defies logic. This case is virtually identical to

Arizona State Legislature where the legislative body had standing. Here, sixty-nine of ninety-four

representatives and twenty-nine of thirty-three senators voted to pass SJR 467. Tennessee General

Assembly,

SJR0467

Bill

History,

available

at

http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SJR0467&ga=109

(last

accessed July 14, 2017) (attached as Exhibit D). Tennessee “commenced this action after

authorizing votes in both of its chambers.” Ariz. State Legis., 135 S. Ct. at 2664. These sixty-nine

representatives and twenty-nine senators have a sufficient number of votes to defeat or enact

legislation—including legislation on the appropriation of State funds—in the State of Tennessee.

Id. at 2665.

Defendants cite only three cases to support their suggestion that the General Assembly

lacks standing: (1) Arizona Legislature, where the legislative body voted to initiate the lawsuit and

the legislative body had standing; id. at 2664; (2) Raines, where only six members initiated the

lawsuit on their own and the individual legislators did not have standing; Raines, 521 U.S. at 824;

and (3) Kerr v. Hickenlooper, where only five of one hundred General Assembly members initiated

the lawsuit on their own and the individual legislators did not have standing. 824 F.3d 1207, 1215-

16 (10th Cir. 2016). These cases all stand for the proposition that the General Assembly has

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standing in this action because it was initiated by a passing vote of both houses of the General Assembly, not just a handful of individual legislators. Compare also American Telephone, 551 F.2d at 391 (“On August 26, 1976, the House of Representatives passed H. Res. 1420, authorizing Chairman Moss’s intervention on behalf of the Committee and the House . . . It is clear that the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf.”) and United States House of Representatives v. Burwell, 130 F. Supp. 3d 53, 68 (D.D.C. 2015) (holding that, “because the House occupies a unique role in the appropriations process prescribed by the Constitution,” the House of Representatives, as an institution, has standing to sue when it alleges that the federal government has usurped its authority to appropriate funds) with Baird v. Norton, 266 F.3d 408, 412 (6th Cir. 2001) (“For legislators to have standing as legislators, then, they must possess votes sufficient to have either defeated or approved the measure at issue.”) and Alaska Legislative Council v. Babbitt, 181 F.3d 1333, 1338 (D.C. Cir. 1999) (“there is not the slightest suggestion here that these particular legislators had the votes to enact a particular measure”).
Defendants do not—because they cannot—cite a single case where a legislative body voted to initiate suit and a court held that the legislative body lacked standing. Their claim that the General Assembly lacks standing is without any supporting legal authority because there is a clear mandate from the Supreme Court that a legislative body has standing to initiate a suit to protect its legislative rights and federal usurpation of its authority to appropriate funds. Thus, Defendants’ argument is without merit and Plaintiffs’ complaint should not be dismissed.
3. The General Assembly May Bring Suit On Behalf Of The State. Just as the Tennessee General Assembly possesses standing to bring suit in its own name, so, too, does it have the legal right to bring suit in the name of the State of Tennessee. In fact, the
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Supreme Court has recognized that an official other than an attorney general may sue on a state’s behalf. “To vindicate . . . [an] interest . . . , a State must be able to designate agents to represent it in federal court. That agent is typically the State’s attorney general. But state law may provide for other officials to speak for the State in federal court.” Hollingsworth, 133 S. Ct. at 2664 (2013) (citing Poindexter, 114 U.S. at 288) (emphasis added); cf. United States v. Windsor, 133 S. Ct. 2675, 2687-88 (2013) (prudential standing requirements satisfied by presence of U.S. House’s Bipartisan Legal Advisory Group, even though both the government and the challengers to a federal statute agreed it was unconstitutional). There can be no legitimate dispute that the State of Tennessee—like the General Assembly, Sen. Stevens, and Rep. Weaver more specifically—has sustained a constitutional injury by the requirement that it provide refugees access to State Medicaid dollars in the form of TennCare. See Windsor, 133 S. Ct. at 2686 (requirement to provide tax refund was “a stake sufficient for Article III jurisdiction”). Given that decisions about taxing and spending are primarily legislative ones, it is also appropriate that this action be undertaken by the General Assembly in the State’s name.
Notably, in Tennessee, the Attorney General is not an executive branch official; he is instead a member of the judicial branch, and nothing in the Tennessee constitution explicitly mandates that the Attorney General be vested with the exclusive duty to litigate in the name of the State, particularly when that litigation is brought in federal, as opposed to state, court. See Tenn. Const. art. VI, § 5 (“An Attorney General and Reporter for the State shall be appointed by the Judges of the Supreme Court and shall hold his office for a term of eight years”). Thus, efforts to read into his position obligations akin to those of the United States Attorney General risk running afoul of Tennessee’s particular constitutional design. In a similar vein, Defendants assume that the
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Tennessee Constitution’s separation of powers clause, see Tenn. Const. art. II, § 2,2 demands that only its Attorney General appear in court and litigate for the State, but this is to read that clause too expansively. See Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995) (“While the doctrine of separation of powers is fundamental to our form of government, it is not absolute.”). Flexibility rather rigidity should be in no way surprising because it is also how the separation of powers functions at the federal level. See, e.g., Morrison v. Olson, 487 U.S. 654, 693-94 (1988) (rejecting idea that “the Constitution requires that the three branches of Government operate with absolute independence”) (internal quotation marks and citation omitted); Anderson v. Dunn, 19 U.S. 204, 220-24 (1821) (“The different departments of the government could not be divided in this exact, artificial manner. They all run into each other.”).
The absolutist reading of Tennessee’s separation of powers clause urged by Defendants is particularly inapt in the present case because it is the State legislature’s ability to raise and spend money as deemed best by the people’s elected representatives that is primarily implicated by the federal refugee resettlement program.3 See Tenn. Const. art. II, § 24. That is, it is a legislative power—a constitutionally-specified power of the Tennessee General Assembly—that is primarily diminished, and thus it is a legislative attribute of Tennessee’s state sovereignty that is to be vindicated by this lawsuit. There is then nothing in allowing the General Assembly to sue the federal government in the name of the State to protect a core legislative power that is tantamount
2 The same or similar language appears in numerous other State Constitutions. See United States v. Mardis, 670 F. Supp. 2d 696, 699 n.3 (W.D. Tenn. 2009) (collecting examples). 3 Accepting Defendants’ reading would also call into question the constitutional legitimacy of many aspects of Tennessee state government, including its use of administrative agencies, which share attributes of more than one branch of government and which are not expressly provided for in the State’s constitution.
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to an assumption of any of the Tennessee Attorney General’s inherent functions to enforce the
law.4
Furthermore, SJR 467 fully empowers the General Assembly to bring this lawsuit on behalf
of the State in light of the Attorney General’s affirmative decision not to do so. Herbert H. Slatery
III, Attorney General and Reporter for the State of Tennessee, Letter to Chief Clerks of the General
Assembly, (July 5, 2016) (attached as Exhibit G). As discussed above, SJR 467 was passed by
majorities in each house of the General Assembly and returned by Governor Haslam without a
veto, thereby making it effective pursuant to Section 18 of Article III of the Tennessee
Constitution.5 When the Attorney General declined to bring suit, he delegated his authority to
litigate for the State to the General Assembly, as provided for in SJR 467. As a result, the General
Assembly stands before this Court having been fully authorized by a duly enacted joint resolution
4 On the one hand, Defendants appear to argue that the General Assembly lacks proper statutory authorization to sue in the name of the State, but then, on the other hand, they also argue that, under the State Constitution, the Tennessee Attorney General is the sole officer who can represent the “State of Tennessee” in civil litigation. Defendants cite a handful of Tennessee court decisions, but none of these cases actually answer the question presented here. And, certainly none of the cases cited involved an instance in which the General Assembly was suing to vindicate its legislative rights vis-à-vis the federal government.
5 The Proposed Intervenors argue that SJR 467 is a nullity, given the absence of a signature from Governor Haslam. This reading would create a new understanding of Tennessee constitutional law whereby joint resolutions must be signed, even though Tennessee governors have routinely allowed bills to become law without a signature. Therefore, it ignores the fact that the State Constitution provides that joint resolutions shall “likewise” be presented to the governor in the same manner as “bills” and that joint resolutions become effective or are vetoed in “like manner” as “bills.” Tenn. Const. art. III, § 18. Moreover, in the sole case cited for support of this proposition, Gilbreath v. Willett, 148 Tenn. 92, 251 S.W.2d 910 (1922), the joint resolution at issue was (unlike in the instant case) never presented to the governor for signature or veto. Gilbreath, 251 S.W.2d at 911. Thus, the joint resolution plainly failed to adhere to the process set out in Constitution. It is presentment to the governor followed by a signature or permitting of it to become effective without a signature that makes a joint resolution valid; the presence of his signature is not a requirement so long as it was presented and not vetoed. See Tenn. Const. art III, § 18.
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and the Tennessee Attorney General to represent the State’s interests. It would be inappropriate to assume that the State’s Attorney General made such a delegation if he could not lawfully do so.
As a general rule, federal courts must be “wary of determining an issue of [state] constitutional and common law where unnecessary” and thus must be reluctant “to wade into the debate regarding the parameters of . . . [a state] Attorney General’s litigation authority.” Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). As such, if the Court harbors any doubts about the effectiveness of SJR 467 or the Attorney General’s letter delegating litigation authority, or if the Court has any other reservations about the ability of the General Assembly to pursue this matter in the name of the State of Tennessee, Plaintiffs respectfully request that those questions be certified to the Supreme Court of Tennessee under Rule 23 of that court. See Tenn. Sup. Ct. R. 23, § 1 (“The Supreme Court may, at its discretion, answer questions of law certified to it by . . . a District Court of the United States in Tennessee, . . . when the certifying court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of Tennessee.”); see, e.g., Eiswert v. United States, 619 F. App’x 483, 484 (6th Cir. 2015) (“Because we find that Tennessee case law in this area is unsettled, as a matter of comity and respect for our colleagues on the Supreme Court of Tennessee, we sua sponte certify the question . . . pursuant to Rule 23[.]”).
B. Plaintiffs’ Claim Is Ripe For Review Because This Case Presents A Concrete Legal Issue And Plaintiffs’ Would Suffer Significant Hardship From Delay.
To determine if a case is ripe for review, a court should consider: “(1) is the claim ‘fit[] . . . for judicial decision’ in the sense that it arises in a concrete factual context and concerns a dispute that is likely to come to pass? and (2) what is ‘the hardship to the parties of withholding court consideration’?” Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (quoting Abbott
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Labs. v. Gardner, 387 U.S. 136, 149 (1967)). Both of these factors demonstrate that this case is ripe for review.
First, Plaintiffs’ claim is fit for a judicial decision. “Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.” Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010). Defendants suggest that Plaintiffs’ suit is not ripe because “Tennessee has not submitted a Medicaid State plan amendment detailing changes it intends to make” and, thus, “the Government has been unable to consider, respond to, or render a final decision about the permissibility of any proposed changes in the State’s provision of medical assistance to refugees.” (Defs.’ Mem. of Law 21, ECF 24-1). But this argument falls flat.
Plaintiffs are under a clear, unequivocal mandate from the federal government that Tennessee must provide Medicaid to otherwise eligible refugees. 45 C.F.R. § 400.94(b)-(c) (“A State that provides Medicaid to medically needy individuals in the State under its State plan must determine a refugee applicant’s eligibility for Medicaid as medically needy . . . . A State must provide medical assistance under the Medicaid and SCHIP programs to all refugees eligible under its State plans.”). If Tennessee does not provide medical assistance under Medicaid to all otherwise eligible refugees under the Tennessee Medicaid program (TennCare), the federal government shall—or unequivocally will—“make no further payments to such State.” 42 U.S.C. § 1396c. At the very least, as even Defendants admit in their brief, the federal government will withhold a “limited portion of a State’s Federal Medicaid funds where the State’s plan (or its administration thereof) does not conform to federal requirements.” (Defs.’ Mem. of Law 22). But this assertion
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is irrelevant as Plaintiffs still have “a gun to [their] head.” NFIB v. Sebelius, 567 U.S. 519, 581 (2012).
In NFIB, a case dealing with the exact same threat of withholding Medicaid funds under 42 U.S.C. § 1396c at issue here, the Supreme Court held that the mere “threatened loss of over 10 percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real option . . . .” 567 U.S. at 582 (emphasis added); see also id. at 582 n.12 (“[T]he size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been coerced into accepting that burden. ‘Your money or your life’ is a coercive proposition, whether you have a single dollar in your pocket or $500.”). The Supreme Court has already determined that the “gun” in 42 U.S.C. § 1396c pointed at Plaintiffs’ head is a sufficient threat and that Plaintiffs need not wait to see if the federal government decides to shoot. Id. at 581-82; see also Florida v. United States HHS, 780 F. Supp. 2d 1256, 1265 (N.D. Fla. 2011) (case challenging the constitutionality of Medicaid provisions under the Tenth Amendment brought in district court without going through any plan approval process), aff’d in part, rev’d in part sub nom. NFIB, 567 U.S. 519.
Similarly, in Arizona State Legislature,6 a constitutional amendment removed redistricting authority from the Arizona Legislature and gave it to an independent board. 135 S. Ct. at 2661. The defendants attempted to argue that the injury to the Arizona Legislature was too speculative as the Legislature had not attempted to pass and submit a redistricting plan, even though such a plan would be violative of the new amendment to the Arizona constitution. Id. at 2663. The Court rejected this argument, holding that the Arizona Legislature need not pass a proposal to establish its injury, especially when such an act would violate the Arizona constitution. Id. at 2663-64; see
6 The Court in Arizona State Legislature discussed the speculative injury issue as one of standing; however, “[a]lthough standing and ripeness are considered separate issues, in practice they involve overlapping inquiries.” Kardules v. City of Columbus, 95 F.3d 1335, 1343 (6th Cir. 1996).
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also Sporhase v. Nebraska, 458 U.S. 941, 944 n.2 (1982) (holding that failure to submit an application that “would not have been granted” does not deprive plaintiffs of standing).
Here, the Tennessee General Assembly is not required to pass a law or submit a proposal that would be invalid and rejected under the current law. The Article III case or controversy requirement does not require the General Assembly to break the law as it stands now or attempt to break the law as it stands now to challenge the constitutionality of the federal government’s actions. Id.
Defendants obliterate any possible argument they may have had concerning ripeness in their circular and contradictory motion. On the one hand, they suggest that Plaintiffs’ claim is not ripe because, should Tennessee no longer provide State funds to refugee’s medical care, the federal government “may not” withhold all Medicaid funds. (Defs.’ Mem. of Law 22). On the other hand, Defendants assert that “[n]o State can claim a reservation of power under the Tenth Amendment to withhold Medicaid funding for refugees, merely because of their refugee status, when doing so would be forbidden by the Equal Protection Clause.” (Defs. Mem. of Law 31). Defendants cannot at one time assert that it is unclear what would happen should Tennessee stop funding the refugee program then, just a few pages later, inform Plaintiffs that they have “[n]o . . . [a]uthority” to keep their State funds and that any attempt to do so is violative of the Equal Protection Clause. (Id. ¶¶ 28, 29-30). If there was any doubt in the clearly worded statutory mandates before Defendants’ motion, Defendants cure any issue related to ripeness by making it clear that any attempt by Plaintiffs stop funding the refugee resettlement program would be futile.
Second, Plaintiffs face significant hardship. Plaintiffs allege the undermining of our twosovereign structure of government; a loss so fundamental that its deprivation causes all other liberties to suffer. NFIB, 567 U.S. at 577; c.f. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss
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of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). Furthermore, the refugee resettlement program imposes a hardship on Plaintiffs by expending State funds, costing Tennessee approximately $31 million per year. (Pls.’ Compl. ¶ 29); Abbott Labs., 387 U.S. at 152 (holding that the cost of destroying old and printing new labels and promotional materials constituted a hardship).
Plaintiffs also “risk serious . . . civil penalties” for refusing to cover portions of the refugee resettlement program. As already discussed, 42 U.S.C. § 1396c threatens to withhold all federal Medicaid funds, nearly $7 billion per year and approximately 20% of the State’s yearly budget. In addition to this, Plaintiffs face expected lawsuits as Defendants take the position that Plaintiffs will violate the Equal Protection Clause should they not fund the federal program through Medicaid. (Defs. Mem. of Law 28-30). The inevitability of such suits against Plaintiffs is abundantly clear as outside, unaffected parties are already seeking to litigate as intervening defendants in this action. (Motion to Intervene, ECF 25).
Thus, Plaintiffs’ claim is ripe. C. Plaintiffs’ Suit Is Not Precluded As The Medicaid Statute Is Inapplicable. The federal statute cited by Defendants to argue that this suit is precluded, 42 U.S.C. § 1316, governs the process only for a “[d]etermination of conformity [of a State Medicaid plan] with requirements for approval.” This provision is inapplicable here. Plaintiffs do not seek to have a plan approved because such an attempt would be futile. Plaintiffs freely and readily admit that what they seek violates the current requirements. Thus, a statute on the “[d]etermination of conformity” is completely irrelevant here. Plaintiffs do not seek a determination of whether their proposal conforms toMedicaid requirements; they seek a determination of whether the Medicaid and refugee resettlement requirements conform with the Constitution. As detailed in Part I.B
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supra, Plaintiffs are not required to go through a lengthy administrative process when what they seek clearly conflicts with the current law and the current law conflicts with the Constitution.
Defendants suggest that Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), supports their assertion that Plaintiffs’ claim is precluded, but just the opposite is true. In Thunder Basin, the Court found the plaintiff’s claims precluded under the Mine Act only because “its claims turn[ed] on a question of statutory interpretation that [could] be meaningfully reviewed under the Mine Act.” Id. at 216 (emphasis added). Here, there is no question of statutory interpretation. The only question is one of constitutional interpretation: do provisions of the Medicaid statutes violate the Spending Clause and Tenth Amendment as applied to Tennessee? This is squarely within the purview of the district court. Florida, 780 F. Supp. 2d at 1265 (case challenging the constitutionality of Medicaid provisions under the Tenth Amendment brought in district court).
Therefore, because Plaintiffs have standing, because Plaintiffs’ claim is ripe, and because Plaintiffs are in the proper forum, this Court has subject matter jurisdiction over Plaintiffs’ claim and Defendants’ motion to dismiss should be denied. II. PLAINTIFFS PLAUSIBLY ALLEGE THAT THE REFUGEE RESETTLEMENT
PROGRAM VIOLATES THE CONSTITUTION. Plaintiffs’ complaint presents an “as applied” challenge to the manner in which the federal government has utilized its power pursuant to the Constitution’s Spending Clause to compel nonconsenting States, like Tennessee, to fund federal activities under the refugee resettlement program. Defendants’ characterization of the complaint as a facial challenge is incorrect, and thus the burden for Plaintiffs is far less onerous than that required in a facial challenge. Women’s Medical Prof’l Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). Instead of establishing unconstitutionality under every conceivable set of circumstances, as with a facial challenge, Plaintiffs must only establish “that application . . . in the particular context” violates the
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Constitution. Id. (quoting Ada v. Guam Soc’y of Obstetricians and Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, J., dissenting)). Because Plaintiffs’ complaint very plausibly and clearly alleges as-applied violations by Defendants of the Constitution’s Spending Clause and Tenth Amendment through a commandeering of State funds to finance a federal refugee program, Defendants’ motion to dismiss should be denied.
A. The Spending Clause And Tenth Amendment Work Together To Protect States From Being Commandeered Into Supporting Federal Government Programs.
Under the United States Constitution, both the federal government and the governments of the several States are sovereign entities. See Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (describing “dual sovereignty”). While the federal government possesses only those powers expressly enumerated in the Constitution, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” U.S. Const. amend. X. “As James Madison wrote, ‘the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’” United States v. Lopez, 514 U.S. 549, 552 (1995) (quoting The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961)). This division between the powers of the federal and State governments is not a trifling technicality, but rather “was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 572 (1985) (Powell, J., dissenting)).
Because “the Framers rejected the concept of a central government that would act upon and through the States,” Printz v. United States, 521 U.S. 898, 920 (1997), the Constitution prohibits using States as mere instrumentalities of the federal government. See New York v. United
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States, 505 U.S. 144, 162 (1992) (“[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”); cf. Medellin v. Texas, 552 U.S. 491, 532 (2008) (President’s foreign affairs powers could not support “a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws”). More specifically, this means that the federal government may not give a “command to the States to promulgate and enforce laws and regulations,” FERC v. Mississippi, 456 U.S. 742, 761-62 (1982), nor may it “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 288 (1981).
The Supreme Court has likewise invalidated laws that had the effect of commandeering the States to do the work of the federal government. First, in New York v. United States, the Supreme Court held that Congress could not compel States to make “a ‘choice’ of either accepting ownership of [radioactive] waste [sites] or regulating [them] according to the instructions of Congress.” 505 U.S. at 176. Neither option was something Congress could compel a State to accept, and thus forcing a State to “choose” between them amounted to an unconstitutional “‘commandeer[ing]’ of state governments into the service of federal regulatory purposes[.]” Id. Several years later, in Printz v. United States, the Supreme Court again struck down a law for commandeering the States into federal service. Here, the Court invalidated a provision of federal law that required state law enforcement officers to conduct firearms background checks for gun purchases. 521 U.S. at 922-25. As the Court noted in Printz, “[b]y forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress
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can take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions with higher federal taxes.” Id. at 930.
Unconstitutional commandeering may also be found where the federal government uses its Spending Clause powers to coerce a State into taking certain actions. “[I]n some circumstances the financial inducement offered by Congress [to the States] might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” South Dakota v. Dole, 483 U.S. 203, 211 (1987) (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). Notably, the Supreme Court found that financial pressure had turned into compulsion in NFIB v. Sebelius. In that case, several States challenged the Medicaid expansion provision of the Affordable Care Act. 567 U.S. at 57576. The Supreme Court noted that originally Medicaid covered “only certain discrete categories of needy individuals—pregnant women, children, needy families, the blind, the elderly, and the disabled.” 567 U.S. at 575 (citing 42 U.S.C. § 1396a(a)(10)). The Affordable Care Act, however, expanded this to include coverage for “all individuals under the age of 65 with incomes below 133 percent of the federal poverty line.” Id. at 576 (quoting 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII)). The Court concluded that requiring States to cover this new class of individuals, or risk losing all federal Medicaid funding, crossed the line into unconstitutional coercion. As the Court said, the ACA effected a “shift in kind, not merely degree” whereby Medicaid “is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage.” Id. at 583. Accordingly, the Court held the expanded coverage provision unconstitutional because “[t]he threatened loss of over 10 percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real option but to acquiesce.” Id. at 582.
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Just as in NFIB, the present case involves federal Medicaid dollars being used by the federal government as leverage to coerce certain actions from the States in support of a federal goal. Whereas NFIB concerned the coerced expansion of Medicaid obligations to new populations, here the issue is a mandate for States to use Medicaid to cover refugee populations and thereby help the federal government settle them in the United States, even though similarly situated persons admitted through normal immigration procedures would not be Medicaid eligible. If Tennessee does not comply with the federal government’s requirements, it risks losing all of its federal Medicaid dollars, which account for approximately twenty percent of the State budget. State financing of the refugee resettlement program is not what was intended by Congress when it passed the law. See, e.g., 125 Cong. Rec. 23234 (Sept. 6, 1979) (statement of Sen. Kennedy). Nevertheless, refugee resettlement has largely become a state-funded effort. Thus, as with the background search provision in Printz, through the refugee resettlement program the federal government passes on the costs of its own work to the States while taking credit for addressing the problem of settling refugees.
The State of Tennessee has been forced, against its will, to finance refugee resettlement that is otherwise directed and controlled by the federal government all so that the State will not lose its federal Medicaid funding. Given that the Supreme Court in NFIB found that the threatened loss of only ten percent of a State’s budget was too coercive to be constitutional, the actions of the federal government here, which jeopardize twenty percent of all State revenues, are all the more subject to invalidation by this Court.
B. Contrary To Defendants’ Argument, The Federal Government Is In Fact Requiring That The States Fund The Refugee Resettlement Program.
Attempting to escape the fact that the refugee resettlement program is funded by the States, Defendants erroneously lump refugees in with other lawfully present aliens and then assert that all
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of them are the responsibility of a State’s Medicaid program. This argument ignores the fact that the federal government has conferred preferential treatment on refugees, which leaves them situated more favorably than immigrants admitted through regular means. Generally, “[s]elfsufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes,” 8 U.S.C. § 1601(1), and thus other categories of lawful immigrants to the United States are required to make certain showings as to their financial self-sufficiency as a condition to immigrating. See 8 U.S.C. § 1182 (a)(4)(A) (“Any alien who . . . is likely at any time to become a public charge is inadmissible.”); see also id. § 1601(1)(A) (“[A]liens within the Nation’s borders [should] not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”). In contrast, the Refugee Resettlement Act imposes no such self-sufficiency requirement and mandates that refugees be deemed eligible for enrollment in Medicaid immediately upon arrival and for a period of up to seven years thereafter. 45 C.F.R. § 400.94(c) (“A State must provide medical assistance under the Medicaid and SCHIP programs to all refugees eligible under its State plans.”); see 8 U.S.C. § 1612(a)(2)(A)(i) (establishing seven-year limit).
As such, it is improper to say that refugees are simply another part of the lawfully present immigrant population for which states would otherwise be responsible. To the contrary, refugee populations are an economically disadvantaged population who are admitted to the country without regard to their economic status and who are allowed to immediately access welfare benefits. If the refugee resettlement program were terminated along with refugees’ favored status under federal welfare laws, it would mean refugees would not be eligible for admission without regard to their economic condition, and moreover they would not be eligible for Medicaid until they had lived in the United States for five years, just like most other types of immigrants. 8 U.S.C.
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§ 1613(a). Defendants’ special treatment of refugees may very well serve a legitimate federal goal, but it is just that: a federal goal. The federal government cannot constitutionally force “state governments to absorb the financial burden of implementing a federal . . . program” while the federal government takes “credit for ‘solving’ problems.” Printz, 521 U.S. at 930.
C. Plaintiffs Here Merely Seek To Have The Federal Government Absorb The Costs That It Is Currently Passing On To States Like Tennessee. 1. This Lawsuit Does Not Seek To Interfere With The Federal Government’s Powers, Nor Does It Seek To Discriminate Against Any Person.
Contrary to Defendants’ contention, Plaintiffs are not claiming any authority to regulate immigration or to discriminate against refugees or any other category of immigrants. Such arguments are mere strawmen. In fact, Plaintiffs do not dispute that there are lawful means by which the federal government could in fact settle refugees within the State of Tennessee. (See Pls.’ Compl. Prayer for Relief ¶ 2). This suit does contend, however, that the Constitution prohibits the federal government from commandeering State funds to support the federal government in its implementation of federal immigration and naturalization law. (See, e.g., id. ¶¶ 45-48, 56-59).
The fact that the Constitution grants the federal government authority over immigration and naturalization, U.S. Const. art. I, § 8, cl. 4, does not mean that it may thereby evade the Constitution’s other limits, particularly federalism limits, on the exercise of the government’s enumerated powers. See, e.g., College Savings Bank v. Florida Prepaidpostsecondary Ed. Expense Bd., 527 U.S. 666, 669-70 (1999) (Article I power to regulate commerce could not support abrogation of State sovereign immunity); see also City of Boerne v. Flores, 521 U.S. 507, 516, 522 (1997) (Fourteenth Amendment grants to federal government no substantive, non-remedial power over the States). Defendants wrongly suggest otherwise. (Defs.’ Mem. of Law 29-30). The government’s position is contradicted by established precedent, which makes it clear that a grant
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of authority to the federal government under Article I does not confer authority to ignore other restrictions imposed by the Constitution. See, e.g., New York, 505 U.S. at 156-57 (“[U]nder the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment.”); see Printz, 521 U.S. at 923-24 (law passed to regulate commerce is not “proper” under Necessary and Proper Clause if it “violates the principle of state sovereignty”). “No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require States to regulate.” New York, 505 U.S. at 178. And, of course, even Congress’s power under the Spending Clause does not entitle it to attach whatever strings it chooses to the funds its sends the States. NFIB, 567 U.S. at 581-82; see South Dakota, 483 U.S. at 211.
Furthermore, Plaintiffs expressly reject Defendants’ argument that they are seeking to discriminate against refugees in violation of the Equal Protection Clause, U.S. Const. amend. XIV, § 1. As discussed above, the fact that federal law waives the self-sufficiency requirement for refugees and makes them eligible for enrollment in Medicaid immediately upon arrival, means they receive more favorable treatment from the law, not less. 45 C.F.R. § 400.94(c); see 8 U.S.C. § 1612(a)(2)(A)(i) (establishing seven-year limit). As such, Graham v. Richardson, 403 U.S. 365 (1971) and related cases cited by Defendants have no applicability to the relief requested in this action. In Graham, the Supreme Court held that two States could not restrict eligibility by lawfully present aliens to otherwise generally available public assistance. 403 U.S. at 375-76. Here, by contrast, it is the preferential treatment of refugees by the federal government that presents the problem because current federal law makes access to public assistance more readily available to refugees—and it makes the States pay for it.
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If the federal government merely contended that refugees were entitled to the same rights as other persons, including other immigrants, this suit would not be necessary. The federal government, however, has decreed that refugees receive greater rights to access benefits than other immigrants, e.g., 45 C.F.R. § 400.94, a decision that strains the resources of numerous States, including Tennessee. (See Pls.’ Comp. ¶¶ 32-35). Equal treatment of refugees would be acceptable to Plaintiffs; it is the special treatment of refugees mandated, but not actually funded, by the federal government that gives rise to this litigation. Thus, Defendants’ contention that Plaintiffs seek to discriminate against refugees in violation of the Equal Protection Clause is simply wrong and fails to establish that this suit should be dismissed for failure to state a claim.
2. Defendants Incorrectly And Improperly Argue That The Refugee Resettlement Act Conserves State Funds.
Because of the manner in which the federal government has implemented the refugee resettlement program, the State of Tennessee must support a federal initiative from which it withdrew in 2008. Defendants argue that, in the final accounting, the State of Tennessee is better off financially because refugees admitted under this program are limited to seven years of Medicaid. This assertion is misplaced for several reasons. First, this is but a hypothetical and speculative contention for which Defendants have offered no actual evidentiary support. Even if Defendants had offered any such evidence, however, it could not be considered here because their motion to dismiss is made under Rule 12(b)(6), which requires, of course, that the Court limit its consideration to the factual allegations of the plaintiff’s complaint, “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (internal quotation marks and citation omitted). Nothing in Plaintiffs’ complaint indicates that Tennessee’s state budget is ultimately better off because, absent the challenged
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federal actions, the refugees at issue would later be qualified to enroll in and then receive more Medicaid benefits from the State of Tennessee than they do currently. In fact, the need for Medicaid assistance should be less likely, not more, if the federal government imposed the same self-sufficiency requirement on refugees that it did on regular immigrants. See 8 U.S.C. § 1182 (a)(4)(A).
Moreover, this case is broader than suggested by Defendants. This suit actually concerns not simply the specific funds spent on the refugee resettlement program, but the billions of dollars received by the State in Medicaid funding, which represent approximately twenty percent of the State’s budget and which the federal government threatens to revoke if Tennessee does not support the resettlement of refugees. (See Pls.’ Comp. ¶¶ 34-35, 43-46). There can be no serious question that Tennessee would be worse off if it lost the roughly twenty percent of the State budget that comes from the federal government through Medicaid.
Additionally, Defendants cite no authority to support their contention that the federal government may unconstitutionally deprive a State of its funds so long as the State receives a larger sum in the long run than it would have otherwise. Indeed, this would be like saying the government could legitimately deprive a person of her liberty or property without due process of law provided a large sum of money is later paid. Such an argument is startling because it fails to account for the dignitary harm that comes from being deprived of constitutional protections. See, e.g., Ellison v. Balinski, 625 F.3d 953, 959-60 (6th Cir. 2010) (recognizing that an “intangible injury to . . . [a] constitutional and dignitary interest” is actionable). The federal government is required to respect the dignity of States as independent sovereign entities just like it must respect the dignity of individuals. See, e.g., Alden v. Maine, 527 U.S. 706, 715 (1999) (“[States] are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not
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the full authority, of sovereignty.”); cf. Bragg v. W. Va. Coal Ass’n, 248 F.3d 275, 297 (4th Cir. 2001) (“[A State’s] dignity interest does not fade into oblivion merely because a State’s law is enacted to comport with a federal invitation to regulate within certain parameters and with federal agency approval.”). Defendants’ unsubstantiated conjecture about a purely hypothetical benefit to the State at some point in the future fails to account for this dignitary injury and thus should be rejected.
D. This Case Falls Squarely Within And Is Controlled By NFIB v. Sebelius. Finally, Defendants incorrectly assert that this case does not fall within the ambit of NFIB v. Sebelius. The gravamen of Defendants’ argument is that the provision of Medicaid services to refugees is a modification of Medicaid eligibility, and that it is not a surprising or new development in the Medicaid program. In reality, though, this case presents a paradigmatic example of the federal government attempting to commandeer State resources in the same manner as that held unconstitutional in NFIB. As an initial matter, Defendants’ contention that the refugee resettlement program is not a “new program” fails to take account of how the federal government has substantially altered the program over time, ultimately leading to Tennessee’s withdrawal from the program less than a decade ago and the federal government’s subsequent use of contractors to continue the program— at State expense. Plaintiffs’ complaint explains this history. (Pls.’ Comp. ¶¶ 38-41). As originally passed, the Refugee Resettlement Act relied on federal funding. (Id. ¶ 23-26). Senator Ted Kennedy, leading sponsor of the Act, described the “three types of Federal assistance [that] are provided through a 100-percent reimbursement to the States for all refugees who do not qualify for the regular AFDC-Medicaid programs. For those who do qualify for the regular programs, the funds cover the State’s portion of payment for these services.” 125 Cong. Rec. 23234 (Sept. 6,
27

Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 36 of 41 PageID 944
1979) (statement of Sen. Kennedy). The federal contribution was gradually reduced and by 1991 eliminated entirely, thereby making the States responsible for funding the program. (Pls.’ Compl. ¶¶ 27-28). In 2007, Tennessee decided to withdraw from the resettlement program pursuant to 45 C.F.R. § 400.301 and notified the federal government of its intent to withdraw effective June 30, 2008. (Id. ¶ 32). Nevertheless, the federal government continues to resettle refugees in Tennessee with the aid of private contractors. (Id. ¶¶ 33, 38-40). These refugees then are eligible to enroll in TennCare at State expense. (Id. ¶ 36-37). Consequently, the State of Tennessee must finance the costs of Medicaid for thousands of refugees each year or risk losing all of its federal Medicaid dollars, even though it has withdrawn from the resettlement program. (Id. ¶¶ 35, 42).
Simply declaring, as Defendants do, that the State of Tennessee has long provided welfare benefits to immigrants ignores the realities by which the federal government has effectively amended the Refugee Resettlement Act to such a point that it is unrecognizable from the legislation as enacted by Congress in 1980. See Edward M. Kennedy, Refugee Act of 1980, 15 Int’l Migration Rev., no. 1/2, Spring-Summer 1981 at 141, 142 (Sen. Ted Kennedy writing that the program would “assure full and adequate federal support for refugee resettlement programs by authorizing permanent funding for state, local and volunteer agency projects”) (emphasis added). Only the most cynical of observers could say that a State should not be surprised that the Refugee Resettlement Act has been turned on its head from one where the federal government fully funds it to one that is financed by the States lest they lose all of their Medicaid funding.7 (Pls.’ Compl. ¶¶ 27-28, 42).
7 The main case discussed by the Proposed Intervenors in this regard did not involve such a change in circumstances that ultimately effected a change of kind rather than merely degree. Mayhew v. Burwell, 772 F.3d 80, 91-92 (1st Cir. 2014).
28

Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 37 of 41 PageID 945
Attention must also be given to the increasing number of refugees admitted in recent years, particularly since 2007 and 2008. “Before the Refugee Act of 1980, refugee admission policy was reactive and piecemeal as it grew in response to humanitarian crises and ethnic conflicts. The result was an assortment of laws and regulations[.]” USCIS Policy Manual, Vol. 7, Part L, Chapter 1.B (June 28, 2017) (background of refugee adjustment), available at https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartL-Chapter1.html (last accessed July 14, 2017) (attached as Exhibit E). One such piece of legislation was the Vietnam Humanitarian Assistance and Evacuation Act of 1975, P.L. 94-24, 89 Stat. 89, which appropriated $405,000,000 to assist refugees from Cambodia and Vietnam. The Refugee Act of 1980 was intended to follow this same path by making the federal government financially responsible for refugee resettlement, but financial responsibility was an obligation the federal government would eventually abandon. Resettlement of refugees has nonetheless continued—sometimes very aggressively. According to the U.S. Department of State’s own data, the years of 2002 and 2003 were a low point in the number of refugees admitted, but those numbers then took a general trajectory upwards. See “Arrivals by State and Nationality as of June 30, 2017” (FY 1975 through 30 June 2017), U.S. Dept. of State (2017), available at http://www.wrapsnet.org/admissions-andarrivals/ (last accessed July 14, 2017) (attached as Exhibit F). In 2016, that number was the highest it had been in over fifteen years. Id. Thus, at a time of rapidly increasing healthcare costs, the federal government is also increasing the number of refugees it brings to this country at the expense of the States. And, it is pursuing this program in Tennessee (and elsewhere) by ignoring the State’s decision to withdraw from the program and using private contractors instead—another unforeseeable development. The result is a far different picture than that presented at the time of
29

Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 38 of 41 PageID 946
the Refugee Resettlement Act in 1980 or any time before then when Tennessee, along with other States, began participation in Medicaid.
Furthermore, “[s]tate officials . . . cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.” New York, 505 U.S. at 182. Nor does “prior support for [an] Act estop [a State] from asserting the Act’s unconstitutionality.” Id. at 183. Thus, Tennessee’s prior participation is not dispositive of whether the program is unconstitutional. The fact that the refugee resettlement program has morphed, particularly since 2008, into something different than what was enacted makes this all the more true.
Ultimately, Plaintiffs’ complaint plausibly describes a program that is “new” and “surprising” under NFIB, especially with respect to the federal government’s actions since Tennessee’s withdrawal. Therefore, Defendants’ purported contradiction of these factual allegations in the complaint cannot be presented on a Rule 12(b)(6) motion and, even still, have no basis in fact.
Citing pre-NFIB case law, Defendants also assert that this case is not proper because the federal government has not yet decided to punish the State of Tennessee—a repetition of their argument under Rule 12(b)(1). The Supreme Court in NFIB, however, saw no problem in hearing—and sustaining—a challenge to the Affordable Care Act’s Medicaid expansion provision prior to any enforcement action by the federal government. 567 U.S. at 583-85. Just as in NFIB, the instant challenge is also amenable to judicial review.
Furthermore, since Tennessee has not yet defunded the refugee resettlement program, no action to deprive the State of Medicaid funds could be taken. Notably, Defendants’ brief acknowledges that the federal government could indeed decide to exercise its power under 42 U.S.C. § 1396c to withhold all Medicaid funding if the State did defund the program, and yet
30

Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 39 of 41 PageID 947
Defendants contend that this threatened loss of twenty percent of the entire State budget is somehow not coercive. (See Defs.’ Mem. of Law 35). Such an argument rests on Defendants’ representation that the federal government might potentially be so kind as to not withhold all of the Medicaid funding that it could and that the amount ultimately withheld might not be “coercive” under NFIB. (Id.). This possibility is too slender a reed to rest upon in making State budgetary decisions.
In reality, Plaintiffs are pursuing the sensible course. Unlike the federal government, the State of Tennessee must balance its budget. Tenn. Const. art. II, § 24. Possessing the constitutional responsibility to be a prudent steward of the State’s revenue and of its programs, including TennCare, the General Assembly here seeks a determination of its obligations prior to passing legislation that might be deemed a violation of federal law and result in an enforcement action by the federal government. Passing a budget that fails to fund the refugee resettlement program only to be ordered later by a court to support it would cause innumerable issues and inject unnecessary confusion into multiple cycles of the State’s budgetary and appropriations process. Instead, Plaintiffs here seek to have these questions settled before enacting a budget that potentially endangers billions of dollars in federal receipts. Indeed, a declaratory judgment is beneficial and proper when “it will serve a useful purpose in clarifying and settling the legal relations in issue, and . . . terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Grand Trunk Western R.R. Co. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) (quoting E. Borchard, Declaratory Judgments 299 (2d ed. 1941)); see, e.g., Plough, Inc. v. Allergan, Inc., 741 F. Supp. 144, 147-48 (W.D. Tenn. 1990) (plaintiff could pursue declaratory judgment where it risked being sued for ongoing marketing activities). A judicial answer to the constitutional questions raised by Plaintiffs’ complaint would settle the issues
31

Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 40 of 41 PageID 948

between the parties and obviate the uncertainty currently faced by the State. Thus, Plaintiffs are

here properly before the Court, and Defendants’ motion should be denied.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss should be denied.

REQUEST FOR ORAL ARGUMENT

Plaintiffs respectfully request that the Court grant oral argument of Defendants’ motion to

dismiss because this action and the arguments of the parties present complex issues of

constitutional law that implicate important questions of public policy for the finances of the State

of Tennessee.

Dated: July 14, 2017

Respectfully submitted,

THOMAS MORE LAW CENTER
s/Kate Oliveri Kate Oliveri, Michigan Bar No. P79932 Jay R. Combs, Michigan Bar No. P81637 Richard Thompson, Michigan Bar No. P21410 24 Frank Lloyd Wright Drive Suite J 3200 Ann Arbor, Michigan 48106 (734) 827-2001 koliveri@thomasmore.org jcombs@thomasmore.org rthompson@thomasmore.org
MILLBERG GORDON STEWART PLLC
s/B. Tyler Brooks B. Tyler Brooks, Tennessee BPR No. 025291 1101 Haynes Street, Suite 104 Raleigh, North Carolina 27604 (919) 836-0090 tbrooks@mgsattorneys.com
Attorneys for Plaintiffs

32

Case 1:17-cv-01040-STA-egb Document 38 Filed 07/14/17 Page 41 of 41 PageID 949 CERTIFICATE OF SERVICE
I hereby certify that on July 14, 2017, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. I further certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/Kate Oliveri Kate Oliveri
33

Case 1:17-cv-01040-STA-egb Document 38-1 Filed 07/14/17 Page 1 of 3 PageID 950
Exhibit A

Case 1:17-cv-01040-STA-egb Document 38-1 Filed 07/14/17 Page 2 of 3 PageID 951

Case 1:17-cv-01040-STA-egb Document 38-1 Filed 07/14/17 Page 3 of 3 PageID 952

Case 1:17-cv-01040-STA-egb Document 38-2 Filed 07/14/17 Page 1 of 2 PageID 953
Exhibit B

Case 1:17-cv-01040-STA-egb Document 38-2 Filed 07/14/17 Page 2 of 2 PageID 954

Case 1:17-cv-01040-STA-egb Document 38-3 Filed 07/14/17 Page 1 of 4 PageID 955
<BillNo> <Sponsor> SENATE JOINT RESOLUTION 467
By Ramsey

A RESOLUTION regarding the commencement of legal action seeking relief, including declaratory and injunctive relief, from the federal government's mandated appropriation of state revenue and noncompliance with the Refugee Act of 1980 with respect to refugee resettlement in Tennessee.

WHEREAS, the State of Tennessee withdrew from the federal Refugee Resettlement

Program in 2007; and

WHEREAS, the federal government reinstated the program by designating a

replacement agency and establishing the Tennessee Office of Refugees in 2008; and

WHEREAS, the Tennessee Office of Refugees was selected as the Wilson-Fish provider

for the State of Tennessee in 2010; and

WHEREAS, the federal government is actively placing refugees in the State of

Tennessee; and

WHEREAS, the State of Tennessee is required to provide certain benefits and services

to otherwise eligible refugees, including Medicaid services, or risk losing all Medicaid funding

pursuant to 8 U.S.C. § 1612 and 42 U.S.C. § 1396(c); and

WHEREAS, under the Tenth Amendment to the United States Constitution as construed

by the United States Supreme Court in National Federation of Independent Businesses v.

Sebelius, 132 S. Ct. 2566 (2012), the federal government cannot lawfully coerce the State to

provide funding with no real option but to acquiesce; and

WHEREAS, such coercion is also prohibited by Article II, Section 24, of the Tennessee

Constitution, which prohibits the expenditure of public money except pursuant to appropriations

made by law; and

SJR0467 011486
-1-

Exhibit C

Case 1:17-cv-01040-STA-egb Document 38-3 Filed 07/14/17 Page 2 of 4 PageID 956
WHEREAS, by conditioning all Medicaid funding on the requirement that the State provide Medicaid services to refugees absent other input or control by the State of Tennessee, the State is being coerced in violation of both the United States Constitution and the Tennessee Constitution; and
WHEREAS, each member of the General Assembly has taken an oath to uphold the Constitution of Tennessee and the Constitution of the United States; and
WHEREAS, if it is constitutionally permissible for the federal government to compel a state legislative body to perform its most important function, the appropriation of state tax dollars, as well as expend its limited resources, personnel, and services on a program from which it has withdrawn, the Tenth Amendment to the United States Constitution is merely words on paper, and the powers of the federal government are unfettered and boundless, allowing it to require the same of any state, for any program, at any time; and
WHEREAS, while Tennesseans are proud to be the sixteenth member of these United States, the right of Tennessee to appropriate tax dollars in a manner determined by representatives elected by its citizens is fundamental and cannot be usurped, lest the legislative bodies in all of these United States be considered mere departments of the federal government and rendered impotent and unnecessary; and
WHEREAS, if the federal government intends to overreach its authority to the point that it assumes the traditional constitutional role of a state legislative body, it is only fitting and proper that the very existence, as well as the depth and breadth, of this federal power be clarified and declared in a court of law; and
WHEREAS, the Refugee Act of 1980 establishes a framework for collaboration and cooperation between the federal government and the States in resettling refugees. 8 U.S.C. § 1522. The Refugee Act of 1980 requires that the federal government "shall consult regularly (not less often than quarterly) with State and local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities before their placement in those States and localities." 8 U.S.C. §
SJR0467 011486
-2-

Case 1:17-cv-01040-STA-egb Document 38-3 Filed 07/14/17 Page 3 of 4 PageID 957

1522(a)(2)(A). The federal government's obligation to consult with the States is thus clear and

unequivocal. The federal government "shall consult" with a State regarding the placement of

refugees within its borders before those refugees are placed there; and

WHEREAS, the Refugee Act of 1980 requires the federal government to consult with the

State regarding the placement of refugees before those refugees are placed within its borders,

and that consultation has not occurred; now, therefore,

BE IT RESOLVED BY THE SENATE OF THE ONE HUNDRED NINTH GENERAL

ASSEMBLY OF THE STATE OF TENNESSEE, THE HOUSE OF REPRESENTATIVES

CONCURRING, that the Tennessee General Assembly directs the Attorney General and

Reporter of the State of Tennessee to initiate or intervene in one or more civil actions on behalf

of the State of Tennessee or, in the alternative, seek appropriate relief in a federal court of

competent jurisdiction regarding the failure of the federal government to comply with the

Refugee Act of 1980, as amended, and any actions taken by the federal government, including

the President of the United States, the head of any department or agency, or any other

employee of the executive branch of the federal government, in violation of federal law or as

prohibited by the Tenth Amendment to the United States Constitution, or any other statutory or

constitutional provisions of the United States or the state of Tennessee, with respect to the

operation or implementation in this state of any provision of the federal government's Refugee

Resettlement Program, including any revision or amendment by regulation or otherwise

pertaining to the program.

BE IT FURTHER RESOLVED, that the civil action shall also seek to prohibit the

appropriation of state funds without the specific authorization of the Tennessee General

Assembly in connection with the refugee resettlement act.

BE IT FURTHER RESOLVED, that the Attorney General and Reporter, in conjunction

with the Speaker of the Senate and the Speaker of the House of Representatives, may employ

the services of outside counsel to assist in and consult on any such civil action filed on behalf of

the state or the General Assembly.

BE IT FURTHER RESOLVED, that the Attorney General and Reporter shall file written

notice with the chief clerk of the Senate and chief clerk of the House of Representatives if the

- 3 -

011486

Case 1:17-cv-01040-STA-egb Document 38-3 Filed 07/14/17 Page 4 of 4 PageID 958 Attorney General and Reporter chooses not to initiate or intervene in a civil action pursuant to this resolution. BE IT FURTHER RESOLVED, that upon receipt of notice from the Attorney General and Reporter declining the initiation of or intervention into a civil action described in this resolution, the Speaker of the Senate and the Speaker of the House of Representatives are authorized to employ outside counsel to commence a civil action effectuating the purposes of this resolution. BE IT FURTHER RESOLVED, that a certified copy of this resolution be transmitted to the Attorney General and Reporter of Tennessee.

- 4 -

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SJR 0467 by *Ramsey
General Assembly, Statement of Intent or Position - Directs the commencement of legal action, seeking declaratory and injunctive relief, from the federal government's mandated appropriation of state revenue and noncompliance with the Refugee Act. -

 Bill History

SJR0467 ACTIONS

DATE

Returned by Governor without signature.

05/20/2016

Transmitted to Governor for action. 05/09/2016

Signed by H. Speaker

04/26/2016

Signed by Senate Speaker

04/26/2016

Enrolled and ready for signatures 04/26/2016

Concurred, Ayes 29, Nays 4 (Amendment 1 - HA1060)

04/19/2016

Placed on Senate Message Calendar calendar for 4/19/2016

04/18/2016

Concurred as am., Ayes 69, Nays 25, PNV 0

04/18/2016

H. adopted am. (Amendment 1 HA1060)

04/18/2016

H. Placed on Regular Calendar for 4/18/2016

04/14/2016

Placed on cal. Calendar & Rules Committee for 4/14/2016

04/13/2016

Rec. for pass; ref to Calendar & Rules Committee

04/12/2016

http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SJR0467&ga=109

Exhibit D
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Placed on cal. Finance, Ways &

04/06/2016

Means Committee for 4/12/2016

PageID 960

Rec. for pass by s/c ref. to Finance, 04/06/2016 Ways & Means Committee

Placed on s/c cal Finance, Ways & 03/30/2016 Means Subcommittee for 4/6/2016

Assigned to s/c Finance, Ways & Means Subcommittee

03/30/2016

Rec. for pass. if am., ref. to Finance, 03/29/2016 Ways & Means Committee

Placed on cal. State Government Committee for 3/29/2016

03/23/2016

Action def. in State Government Committee to 3/29/2016

03/22/2016

Placed on cal. State Government Committee for 3/22/2016

03/16/2016

Rec. for pass by s/c ref. to State Government Committee

03/16/2016

Placed on s/c cal State Government 03/09/2016 Subcommittee for 3/16/2016

Assigned to s/c State Government Subcommittee

02/25/2016

Ref. to State Government Committee

02/25/2016

Sponsor(s) Added.

02/22/2016

Engrossed; ready for transmission to House

02/22/2016

Adopted, Ayes 27, Nays 5

02/22/2016

Placed on Senate Regular Calendar 02/18/2016 calendar for 2/22/2016

Sponsor(s) Added.

02/17/2016

Recommended for adoption by Senate Finance, Ways, and Means Committee, refer Senate Calendar Committee

02/16/2016

http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SJR0467&ga=109

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Placed on Senate Finance, Ways,

02/10/2016

and Means Committee calendar for

2/16/2016

PageID 961

Sponsor(s) Added.

02/09/2016

Sponsor(s) Added.

01/27/2016

Sponsor(s) Added.

01/25/2016

Passed on Second Consideration, refer to Senate Finance, Ways & Means Committee

01/25/2016

Introduced, Passed on First Consideration

01/21/2016

Sponsor(s) Added.

01/21/2016

Filed for introduction

01/21/2016

http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SJR0467&ga=109

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7/14/2017 Case 1:17-cv-01040-STPAurp-oesgeband DBaockcguromuned n- Ct h3a8pt-e5r 1, PFairlteLd, Vo0lu7m/1e 47 /| 1Po7licyPMaangueal |1USoCfIS2 PageID 962

Official Website of the Department of Homeland Security

Español (http://www.uscis.gov/es) | About USCIS (http://www.uscis.gov/aboutus) | Contact Us (http://www.uscis.gov/about-us/contact-us)

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December 13, 2016 – Technical Update – Clarifying Designated Periods of Hostilities for Naturalization under INA 329 (https://www.uscis.gov/policymanual/HTML/PolicyManual-Updates.html)
Volume 1 –
General Policies and Procedures (PolicyManual-Volume1.html)
Volume 2 –
Nonimmigrants (PolicyManual-Volume2.html)
Volume 3 –
Protection & Parole
Volume 4 –
Refugees
Volume 5 –
Asylees
Volume 6 –
Immigrants (PolicyManual-Volume6.html)
Volume 7 –
Adjustment of Status (PolicyManual-Volume7.html)
Volume 8 –
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Volume 9 –
Waivers (PolicyManual-Volume9.html)
Volume 10 –
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Volume 11 –
Travel, Employment, & Identity Documents
Volume 12 –
Citizenship & Naturalization (PolicyManual-Volume12.html)

Volume 7 – Adjustment of Status (PolicyManual-Volume7.html), Part L – Refugee Adjustment (PolicyManual-Volume7-PartL.html)
Chapter 1 – Purpose and Background

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Guidance Resources 0

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A. Purpose

USCIS seeks to:

• Resolve the refugee’s status after admission by ultimately determining whether the refugee is admissible to the United States as an immigrant;

and
Exhibit E

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartL-Chapter1.html

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7/14/2017 Case 1:17-cv-01040-STPAurp-oesgeband DBaockcguromuned n- Ct h3a8pt-e5r 1, PFairlteLd, Vo0lu7m/1e 47 /| 1Po7licyPMaangueal |2USoCfIS2 PageID 963
• Provide qualified refugees a pathway to permanent residence as persons of special humanitarian concern to the United States.
B. Background
Before the Refugee Act of 1980, refugee admission policy was reactive and piecemeal as it grew in response to humanitarian crises and ethnic conflicts. The result was an assortment of laws and regulations that classified persons as refugees, conditional entrants, parolees, pre-parolees, escapees, evacuees, or asylum grantees. In many cases, the long-term resolution of these classifications was unclear. The Refugee Act of 1980 addressed these issues by providing a systematic procedure for the admission and permanent resettlement of refugees of special humanitarian concern to the United States.
Prior to the passage of the Refugee Act, a refugee in the United States had to wait two years to apply for adjustment of status. The refugee also had to show that he or she had fled (or stayed away from) any communist-dominated country or country within the Middle East and was unwilling or unable to return due to fear of persecution.
Although the refugee was not required to show that he or she continued to meet the definition of a refugee, he or she adjusted status under section 245 of the Immigration and Nationality Act (INA), meaning that all of the inadmissibility grounds and bars to adjustment applied. The Refugee Act established, among other things, a uniform basis for permanent resettlement by amending the INA with the creation of section 209.
Refugees are now required to apply to adjust status one year after being admitted as a refugee in order for USCIS to determine their admissibility to the United States as an immigrant. [1] Recognizing the unique and tenuous position of this population, Congress determined that certain grounds of inadmissibility would not apply at time of adjustment, while allowing for the possible waiver of other grounds.
C. Legal Authorities
• INA 209(a) (http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html) – Adjustment of Status of Refugees
• 8 CFR 209.1 (http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-15524/0-0-0-15531.html) – Adjustment of Status of Refugees
• Pub. L. 96-212 (http://www.gpo.gov/fdsys/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf) – Refugee Act of 1980
• INA 101(a)(42) (http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101/0-0-0-195.html) – Definition of “refugee”
Footnotes

1. [^]

See INA 209 (http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html).

Current as of June 28, 2017

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Case 1:17-cv-01040-STA-egb Document 38-6 Filed 07/14/17 Page 1 of 2 PageID 964
Department of State Office of Admissions - Refugee Processing Center
Refugee Admissions by Region Fiscal Year 1975 through 30-Jun-2017

Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). RPC/rpt_PRM/Graph Refugee Admissions since 1975 Report Run Date: 7/5/2017 3:01:48 PM

Exhibit F

Page 1 of 2

Case 1:17-cv-01040-STA-egb Document 38-6 Filed 07/14/17 Page 2 of 2 PageID 965

Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). RPC/rpt_PRM/Graph Refugee Admissions since 1975 Report Run Date: 7/5/2017 3:01:48 PM

Page 2 of 2

Case 1:17-cv-01040-STA-egb Document 38-7 Filed 07/14/17 Page 1 of 4 PageID 966
Exhibit G

Case 1:17-cv-01040-STA-egb Document 38-7 Filed 07/14/17 Page 2 of 4 PageID 967

Case 1:17-cv-01040-STA-egb Document 38-7 Filed 07/14/17 Page 3 of 4 PageID 968

Case 1:17-cv-01040-STA-egb Document 38-7 Filed 07/14/17 Page 4 of 4 PageID 969

 </s> Case 1:17-cv-01040-STA-egb Document 39 Filed 08/18/17 Page 1 of 23 PageID 970

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

(Eastern Division)

_______________________________________

)

STATE OF TENNESSEE, by and through )

the Tennessee General Assembly, et al., )

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-01040-STA-egb

)

UNITED STATES DEPARTMENT OF

)

STATE, et al.,

)

)

Defendants.

)

_______________________________________)

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

Dated: August 18, 2017

CHAD A. READLER Acting Assistant Attorney General
LAWRENCE J. LAURENZI Acting United States Attorney
JENNIFER D. RICKETTS Director
JAMES J. GILLIGAN Special Litigation Counsel
STUART J. ROBINSON Trial Attorney
United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 6102 Washington, D.C. 20530 Tel: 202-514-3358 E-mail: james.gilligan@usdoj.gov
Counsel for Defendants

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TABLE OF CONTENTS PAGE
TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................1 I. PLAINTIFFS’ CLAIM SHOULD BE DISMISSED FOR LACK OF SUBJECT-
MATTER JURISDICTION .................................................................................................1 A. Plaintiffs Do Not Have Standing To Assert Their Claim .......................................1
1. The State legislators do not have standing ..................................................1 2. The General Assembly does not have standing ..........................................2 3. The General Assembly may not bring suit on behalf of the State ...............4 B. Plaintiffs’ Claim Is Not Ripe for Review ...............................................................5 C. The Medicaid Statute Precludes District-Court Review ..........................................8 II. PLAINTIFFS’ ARGUMENTS ON THE MERITS ARE CONTRARY TO LAW ............9 A. The Allegation That Refugee Resettlement Imposes Incidental Costs on Tennessee States No Claim Under the Tenth Amendment.................................9 B. NFIB Is Inapposite .................................................................................................13 CONCLUSION ..............................................................................................................................15

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TABLE OF AUTHORITIES
PAGE(S)
FEDERAL CASES
Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015) ....................................................................................................... 2, 3, 6
Bd. of Educ. of Shelby Cty. v. Memphis City Bd. of Educ., 2012 WL 6003540 (W.D. Tenn. Nov. 30, 2012), supplemented, 2012 WL 6607288 (W.D. Tenn. Dec. 18, 2012) ........................................... 4, 5
California v. United States, 104 F.3d 1086 (9th Cir. 1997) ................................................................................................. 12
Coleman v. Miller, 307 U.S. 433 (1939)................................................................................................................... 3
Cutter v. Wilkinson, 423 F.3d 579 (6th Cir. 2005) ................................................................................................... 13
Elgin v. Department of the Treasury, 567 U.S. 1 (2012)....................................................................................................................... 8
Elrod v. Burns, 427 U.S. 347 (1976)................................................................................................................... 7
Estate of Frerichs by Dunn v. Knox Cty., 2017 WL 3160568 (E.D. Tenn. July 25, 2017) ......................................................................... 7
Florida ex rel Bondi v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011).................................................................................. 6, 8
Florida ex rel McCollum v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010).................................................................................... 11
Garcia v. San Antonio Metro. Trans. Auth., 469 U.S. 528 (1985)........................................................................................................... 10, 11
Graham v. Richardson, 403 U.S. 365 (1971)....................................................................................................... 9, 12, 14
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ............................................................................................................... 2
Karcher v. May, 484 U.S. 72 (1987)..................................................................................................................... 2
ii

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PAGE(S)
Maryland v. Wirtz, 392 U.S. 183 (1968)........................................................................................................... 10, 11
Montgomery v. Kraft Foods Glob., Inc., 2012 WL 6084167 (W.D. Mich. Dec. 6, 2012), aff’d, 822 F.3d 304 (6th Cir. 2016) ............................................................................................ 1
New Jersey v. HHS, 2008 WL 4936933 (D.N.J. Nov. 17, 2008) ............................................................................... 7
New York v. HHS, 2008 WL 5211000 (S.D.N.Y. Dec. 15, 2008) ........................................................................... 8
Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272 (6th Cir. 1997) ..................................................................................................... 7
Nat’l League of Cities v. Usery, 436 U.S. 833 (1976)........................................................................................................... 10, 11
Nat'l Fedn. of Indep. Bs. v. Sebelius, 567 U.S. 519 (2012)................................................................................................... 1, 7, 13, 15
New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996)....................................................................................................... 12
Ohio v. United States, 154 F. Supp. 3d 621 (S.D. Ohio 2016), aff’d, 849 F.3d 313 (6th Cir. 2017) .................................................................................... 11, 13
Ohio v. United States, 849 F.3d 313 (6th Cir. 2017) ................................................................................................... 11
Padavan v. United States, 82 F.3d 23 (2d Cir. 1996)......................................................................................................... 12
Plyler v. Doe, 457 U.S. 202 (1982)................................................................................................................. 12
Printz v. United States, 521 U.S. 898 (1997)........................................................................................................... 12, 13
Puerto Rico v. Branstad, 483 U.S. 219 (1987)................................................................................................................... 9
Raines v. Byrd, 521 U.S. 811 (1997)............................................................................................................... 1, 3
iii

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PAGE(S) Ray v. Madison Cty.,
2016 WL 4006081 (W.D. Tenn. July 25, 2016) ........................................................................ 5 Reno v. Condon,
528 U.S. 141 (2000)........................................................................................................... 11, 13 Rush v. Barham,
618 F. App’x 789 (5th Cir. 2015) .............................................................................................. 7 Sch. Dist. of the City of Pontiac v. Sec’y of Educ.,
584 F.3d 253 (6th Cir. 2009) ..................................................................................................... 8 Takahashi v. Fish & Game Comm’n,
334 U.S. 410 (1948).................................................................................................................. 9 Tangas v. Int’l House of Pancakes LLC,
2016 WL 614006 (N.D. Ohio Feb. 16, 2016) ...................................................................... 2, 14 Texas v. United States,
106 F.3d 661 (5th Cir. 1997) ................................................................................................... 12 Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994)................................................................................................................... 8 United States v. AT&T,
551 F.2d 384 (D.C. Cir. 1976) ................................................................................................... 2 Warshak v. United States,
532 F.3d 521 (6th Cir. 2008) ................................................................................................. 6, 8
STATE CASES Richardson v. Tenn, Bd. of Dentistry,
913 S.W.2d 446 (Tenn. 1995).................................................................................................... 4 State ex rel. Com’r of Transp. v. Med. Bird Black Bear White Eagle,
63 S.W.3d 734 (Tenn. Ct. App. 2001) ....................................................................................... 4 State v. Chastain,
871 S.W.2d 661 (Tenn. 1994).................................................................................................... 4 Vertrees v. State Bd. of Elections,
214 S.W. 737 (Tenn. 1919)........................................................................................................ 2
iv

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PAGE(S) FEDERAL STATUTES 8 U.S.C. § 1157............................................................................................................................. 15 8 U.S.C. § 1522............................................................................................................................... 9 8 U.S.C. § 1612............................................................................................................................... 9 42 U.S.C. § 1316............................................................................................................................. 8 42 U.S.C. § 1396c ........................................................................................................................... 8 LEGISLATIVE MATERIALS H.R. Rep. No. 96-608 (1979)........................................................................................................ 14 S. Rep. No. 96-256 (1979) ............................................................................................................ 14 ADMINISTRATIVE MATERIALS 64 Fed. Reg. 19793 (Apr. 22, 1999) ............................................................................................. 15 TENNESSEE CONSTITUTION Tenn. Const. Art. II, § 1 .................................................................................................................. 4 Tenn. Const. Art. II, § 2 .................................................................................................................. 4
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INTRODUCTION Defendants have explained that the Court lacks subject-matter jurisdiction over Plaintiffs’ claim for three independent reasons: (1) Plaintiffs lack standing to bring their claim; (2) the claim is not ripe for review; and (3) district-court review of Plaintiffs’ claim is precluded by the Medicaid statute. Mem. of Facts & Law in Supp. of Defs.’ Mot. to Dismiss (ECF No. 24-1) (“Defs.’ Mem.”), at 14-24. Defendants have also demonstrated that neither the Tenth Amendment, nor the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) (“NFIB”), shields the State of Tennessee from its longstanding Constitutional obligation to provide Medicaid benefits to refugees on the same terms as it does to U.S. citizens. Defs.’ Mem. at 24-35. Plaintiffs’ response, based on reinventions of their Complaint and inapposite precedent, is insufficient to rebut these grounds for dismissal.
ARGUMENT I. PLAINTIFFS’ CLAIM SHOULD BE DISMISSED FOR LACK OF SUBJECT-
MATTER JURISDICTION. A. Plaintiffs Do Not Have Standing To Assert Their Claim.
1. The State legislators do not have standing. Plaintiffs have failed to establish that State legislators Stevens and Weaver have standing in their official capacity.1 Confronted with the Supreme Court’s decision in Raines v. Byrd, 521
U.S. 811 (1997), Defs.’ Mem. at 15-16, Plaintiffs respond that the legislators have met the requirements of Article III because the General Assembly has standing and designated the legislators to act on its behalf. Pls.’ Opp. at 4-5. This argument, however, departs from the
1 Plaintiffs’ response does not address Defendants’ point that their Complaint (ECF No. 1) (“Compl.”) contains no allegations of personal injury to the legislators that would support their standing as individuals. Compare Defs.’ Mem. at 14-15 with Resp. in Opp. to Defs.’ Mot. to Dismiss (ECF No. 38) (“Pls.’ Opp.”), at 3-5. Accordingly, Plaintiffs have abandoned this theory of standing. See Montgomery v. Kraft Foods Glob., Inc., 2012 WL 6084167, at *6 (W.D. Mich. Dec. 6, 2012), aff’d, 822 F.3d 304 (6th Cir. 2016).

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allegations in the Complaint, see Compl. at 1 (omitting any mention that legislators are filing suit on behalf of legislature), ¶¶ 8-9 (same), and thus should be rejected by the Court. Tangas v. Int’l House of Pancakes LLC, 2016 WL 614006, at *4 (N.D. Ohio Feb. 16, 2016) (“[I]t is hornbook law that a plaintiff cannot amend a complaint through arguments in an opposition brief.”).
Even under this revised theory the legislators would not have standing to bring suit on behalf of the legislature. As an initial matter, the General Assembly itself lacks standing here. See Defs.’ Mem. at 16-17; infra at 2-3. Additionally, Plaintiffs have not identified a State law that authorizes the legislators to speak for the General Assembly. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2664-67 (2013) (citing Karcher v. May, 484 U.S. 72, 81-82 (1987)). State law confers upon the Attorney General, not the General Assembly or legislators, the authority to initiate suit on behalf of the State or General Assembly. See Defs.’ Mem. at 17-19. Senate Joint Resolution (“SJR”) 467 provides no exception, both because a resolution cannot amend a statute or constitutional provision, Vertrees v. State Bd. of Elections, 214 S.W. 737, 742 (Tenn. 1919); Tennessee General Assembly, How A Bill Becomes A Law, http://www.capitol.tn.gov/about/ billtolaw.html (last visited August 17, 2017) (“Resolutions differ from bills in that they do not become law but simply serve to express the views of the majority of one or both houses of the Legislature.”), and because SJR 467 was effectively vetoed by the Governor, see IntervenorDefs.’ Mem. of Facts & Law in Supp. of Mot. to Dismiss (ECF No. 25-6), at 11-12.2
2. The General Assembly does not have standing. Plaintiffs also fail to demonstrate that the General Assembly has standing to bring this suit. Plaintiffs effectively contend that Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015), eliminated any requirement of a concrete and
2 Because the General Assembly lacks standing, and State law precludes it from designating members to bring this suit on its behalf, Plaintiffs cannot persuasively rely on United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976). See Pls.’ Opp. at 3-4.
2

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particularized injury where legislative standing is concerned, and that the question “boils down to pure numbers.” On this basis they maintain that the General Assembly has standing because at least “51% of [its] members … vote[d] to authorize the lawsuit.” Pls.’ Opp. at 5, 7-8.
Plaintiffs misconstrue Arizona State Legislature and the precedent on which it is founded. In Arizona State Legislature, a ballot initiative amended the state constitution by transferring congressional redistricting authority from the state legislature to an independent commission. 135 S. Ct. at 2661. The legislature then “commenced [an] action after authorizing votes in both of its chambers.” Id. at 2664. But that authorization alone was not sufficient to confer standing on the legislature; rather, the Supreme Court explained that the legislature had standing because the ballot initiative, “together with the Arizona Constitution’s ban on efforts to undermine the purposes of an initiative . . . would ‘completely nullif[y]’ any vote by the Legislature, now or ‘in the future,’ purporting to adopt a redistricting plan.” 135 S. Ct. at 2665 (citing Raines, 521 U.S. at 823-24). Similarly, the Supreme Court’s decision in Coleman v. Miller, 307 U.S. 433 (1939), does not indicate that a legislature’s standing depends simply on a tally of aggrieved legislators, but rather “stands . . . for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Raines, 521 U.S. at 823 (emphasis added); cf. id. at 829.
Thus, far from suggesting that a legislature’s standing “boils down to pure numbers,” Pls.’ Opp. at 5, the Supreme Court’s jurisprudence confirms that a legislature must establish that it has suffered a concrete and particularized injury—namely, a complete loss of legislative power—to meet the requirements of Article III. Plaintiffs here do not satisfy that standard, having alleged not a loss of power to enact appropriations legislation, but only that the legislation they prefer, once enacted, might conflict with federal law. See Compl. ¶ 7.
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3. The General Assembly may not bring suit on behalf of the State. Plaintiffs also have not established that the legislature may speak for the State in this action. They suggest that the separation-of-powers principles embedded in the State constitution are so “[f]lexib[le]” as to permit the General Assembly to litigate on the State’s behalf. Pls.’ Opp. at 9-11. But Richardson v. Tennessee Board of Dentistry, 913 S.W.2d 446 (Tenn. 1995), the sole Tennessee case relied on by Plaintiffs, refutes their position, as it confirmed the exclusive authority of each department in its respective sphere. See id. at 452-55 (holding that administrative agencies created by the legislature may not encroach upon the province of the judicial department by determining a statute’s constitutionality (citing Tenn. Const. Art. II, §§ 1, 2)). Accordingly, Richardson here instructs that the General Assembly, tasked “to make, alter, and repeal the law,” may not attempt to “administer[] and enforce[] the law” as well. Id. at 453. Moreover, Plaintiffs do not contest that Tennessee statutes confer exclusive authority on the Attorney General to litigate on behalf of the State. Compare Defs.’ Mem. at 17-18 with Pls.’ Opp. at 8-12. Based on these statutes, and consistent with the State constitution’s separation-ofpowers provisions, courts have described the Attorney General as “the State’s principal civil litigator,” State ex rel. Comm’r of Transp. v. Med. Bird Black Bear White Eagle, 63 S.W.3d 734, 772 (Tenn. Ct. App. 2001); see also State v. Chastain, 871 S.W.2d 661, 665 (Tenn. 1994), even when the interests of the legislature are implicated, see Pls.’ Opp. at 10; Bd. of Educ. of Shelby Cty. v. Memphis City Bd. of Educ., 2012 WL 6003540, at *3 (W.D. Tenn. Nov. 30, 2012) (concluding that the Attorney General is “required to respond to discovery requests on [the General Assembly’s] behalf”), supplemented, 2012 WL 6607288 (W.D. Tenn. Dec. 18, 2012) (Attorney General is the General Assembly’s “legal representative” for purposes of discovery). Plaintiffs’ remaining arguments are also without merit. First, Plaintiffs again invoke SJR 467 as a basis for the General Assembly to litigate on the State’s behalf. Pls.’ Opp. at 11. But as
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previously discussed, that resolution never took effect, and in any event cannot amend the constitutional or statutory responsibilities conferred upon the Attorney General. See supra at 2. Second, Plaintiffs cite no authority to support the position that the Attorney General may delegate his authority, and decline to address the contrary authorities cited by Defendants. Instead Plaintiffs weakly contend that “[i]t would be inappropriate to assume that the State’s Attorney General made such a delegation if he could not lawfully do so.” Pls.’ Opp. at 12. No such assumption is required, however, given that the Attorney General purported to delegate his authority only “to the extent allowed by Tennessee law.” Letter from the Hon. Herbert H. Slatery III, Attorney General and Reporter of the State of Tennessee (ECF No. 24-3), at 4. He did not determine that such delegation would be lawful. Id.
Finally, the Court need not certify any questions regarding the legislature’s standing to the Tennessee Supreme Court, see Pls.’ Opp. at 12, because the existing constitutional provisions, statutory scheme, and jurisprudence set out “a reasonably clear and principled course,” Ray v. Madison Cty., 2016 WL 4006081, at *1 (W.D. Tenn. July 25, 2016) (citation omitted). Certification of the standing question is also unnecessary because, as discussed below, the Court may dismiss this case on other jurisdictional grounds.
Because Plaintiffs have failed to demonstrate standing, the Court must dismiss their claim for lack of subject-matter jurisdiction.
B. Plaintiffs’ Claim Is Not Ripe For Review. Plaintiffs likewise have failed to demonstrate that their claim is ripe for review. First, they have not established that their claim is fit for a judicial decision. Plaintiffs argue that the Government will “inevitab[ly]” withhold Medicaid funds from Tennessee if the State does not provide Medicaid benefits to refugees. Pls.’ Opp. at 13-15. But that result can hardly be described as “inevitable” when (1) the State itself has not taken a single step toward denying
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Medicaid benefits to refugees, such as submitting a Medicaid State plan amendment; (2) the State agency responsible for submitting and implementing such a plan has neither joined this case as a plaintiff nor submitted a declaration in support of Plaintiffs’ position; (3) the Federal Government has not commenced the thorough administrative process required prior to withholding any funds; and (4) the Government has broad discretion in how it responds to a State’s non-compliance, including withholding only a limited amount of funds from the State. See Defs.’ Mem. at 20-22. Thus, Plaintiffs’ claim is not fit for review because it “depends on ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Warshak v. United States, 532 F.3d 521, 526 (6th Cir. 2008) (citation omitted).3
The three cases relied on by Plaintiffs do not support their argument. Notably, none concerned ripeness. See Arizona State Legislature, 135 S. Ct. at 2661-64; NFIB, 567 U.S. at 519; Florida ex rel Bondi v. HHS, 780 F. Supp. 2d 1256 (N.D. Fla. 2011). Nor can Plaintiffs draw support from the Supreme Court’s standing analysis in Arizona State Legislature. Pls.’ Opp. at 14-15. In that case, the Court held that the legislature’s alleged injury was not speculative, given its allegations that it had already suffered a concrete and particularized harm from the adoption of the ballot initiative. 135 S. Ct. at 2663-65. By contrast, the injury Plaintiffs fear here—a loss of all Federal Medicaid funding—has not occurred and may never occur given the Government’s authority to withhold less than all of a State’s Medicaid funds in a case of noncompliance. See Defs.’ Mem. at 4, 21-22.
3 Plaintiffs suggest that these contingencies are irrelevant in light of the holding in Graham v. Richardson, 403 U.S. 365 (1971), that the Equal Protection Clause prohibits the State from denying welfare benefits on the basis of alienage. See Pls.’ Opp. at 25. But the fact that individual refugees could seek to enforce Graham’s mandate in federal court says nothing about the variety of steps the Federal Government could or would take if the State denied Medicaid benefits to refugees.
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Plaintiffs also have not established that they face significant hardship if this Court withholds review. Plaintiffs fail to distinguish (or even reference) the numerous cases holding that compliance with CMS’s administrative process places no hardship on States challenging Medicaid program requirements. Compare Defs.’ Mem. at 22-23 with Pls.’ Opp. at 15-16. Instead, Plaintiffs first claim that their hardship is evidenced by the fact that they have alleged a violation of the Tenth Amendment. Pls.’ Opp. at 15-16. But a litigant cannot satisfy ripeness requirements simply by abstractly “alleg[ing] the undermining of our two-sovereign structure of government.” Id.; see Rush v. Barham, 618 F. App’x 789, 792 (5th Cir. 2015) (affirming dismissal of Tenth Amendment claim for lack of ripeness because “further factual development is required”). The cases cited by Plaintiffs, Pls.’ Opp. at 15-16, do not suggest otherwise, especially as neither considered the ripeness of a Tenth Amendment claim. See NFIB, 567 U.S. at 577; Elrod v. Burns, 427 U.S. 347 (1976).
Second, Plaintiffs assert that they face significant hardship given the possibility that Defendants could withhold up to $7 billion in Medicaid funds from Tennessee each year. Pls.’ Opp. at 16. But as other courts have concluded in response to similar arguments, that concern is entirely speculative. E.g., New Jersey v. HHS, 2008 WL 4936933, at *9 (D.N.J. Nov. 17, 2008).
Finally, Plaintiffs suggest that it is nevertheless appropriate to seek a declaratory judgment here because “[a] judicial answer to the constitutional questions raised by Plaintiffs’ complaint would settle the issues between the parties and obviate the uncertainty currently faced by the State.” Pls.’ Opp. at 31-32. But the Declaratory Judgment Act does not allow Plaintiffs to bypass the ripeness requirement. Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997); Estate of Frerichs by Dunn v. Knox Cty., 2017 WL 3160568, at *4 (E.D. Tenn. July 25, 2017). At this point Plaintiffs have taken no steps to deny Medicaid benefits to refugees, and thus their request for declaratory judgment is precisely the type of “premature adjudication” that
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the ripeness doctrine is meant to avoid. Magaw, 132 F.3d at 284 (doctrine prevents courts “from entangling themselves in abstract disagreements”) (citation omitted).4
The Court should therefore dismiss Plaintiffs’ claim because it is not ripe for review. C. The Medicaid Statute Precludes District-Court Review. Plaintiffs offer no persuasive response to Defendants’ point, based on Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), that district-court review of their claim is precluded by the Medicaid statute. Plaintiffs do not dispute that the Medicaid statute sets out a comprehensive review structure, beginning with a notice of non-compliance, followed by robust administrative proceedings, and culminating in review by a Federal court of appeals, 42 U.S.C. §§ 1316, 1396c. See Pls.’ Opp. at 16-17. Nor do they dispute that a plaintiff asserting a non-constitutional claim under that scheme would be precluded from litigating in district court. Id.; see also, e.g., New York v. HHS, 2008 WL 5211000, at *15-16 (S.D.N.Y. Dec. 15, 2008). Rather, they merely assert that their claim is not precluded because “[t]he only question is one of constitutional interpretation.” Pls.’ Opp. at 17. But that argument is foreclosed by Elgin v. Department of the Treasury, 567 U.S. 1, 13-20 (2012), which held that a statutory scheme that precludes districtcourt review is no less exclusive in cases involving constitutional claims. And the lone case cited by Plaintiffs is inapposite, both because it predates Elgin and because it did not consider a preclusion argument. See Pls.’ Opp. at 17 (citing Florida, 780 F. Supp. 2d at 1265). Accordingly, Plaintiffs have failed to establish that the Court has subject-matter jurisdiction over their claim.
4 Defendants note that in School District of the City of Pontiac v. Sec’y of Education, 584 F.3d 253 (6th Cir. 2009), the Sixth Circuit held that a pre-enforcement challenge seeking a declaration that the plaintiffs did not need to comply with certain requirements of the No Child Left Behind Act was ripe. Id. at 256, 262-64. School District of Pontiac is inapposite, however, because it was undisputed there that resort to available administrative remedies would be futile. Id. at 262 n.3. Here, by contrast, no such assertion has been or could be made. See Defs.’ Mem. at 21-22; Warshak, 532 F.3d at 531-32.
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II. PLAINTIFFS’ ARGUMENTS ON THE MERITS ARE CONTRARY TO LAW. A. The Allegation That Refugee Resettlement Imposes Incidental Costs on Tennessee States No Claim Under the Tenth Amendment. Plaintiffs’ arguments in support of the merits of their Tenth Amendment claim—that the
Government’s implementation of the Refugee Act, 8 U.S.C. § 1522, and the Welfare Reform Act, 8 U.S.C. § 1612, impermissibly intrudes on Tennessee’s sovereignty—also lack substance.
The legal position staked out in Plaintiffs’ Complaint is that following Tennessee’s withdrawal from the Refugee Resettlement Program in 2008, the Federal Government should have ceased resettlement of refugees in Tennessee, or, alternatively, compensated the State for its costs of providing health-care services to refugees enrolled in Medicaid. See Compl. ¶¶ 38, 42, 54; id. Prayer for Relief ¶ 2; see also Defs.’ Mem. at 28. As Defendants have shown, however, the Constitution does not condition the Federal Government’s plenary power to admit aliens, nor their right to settle in the State of their choosing, on a State’s consent. See id. at 28-30, citing, inter alia, Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 416, 420 (1948) (“The authority to control immigration … is vested solely in the Federal government …[and] all persons lawfully in this country [may] abide in any state on an equality of legal privileges….”). Nor does the State possess an interest protected by the Tenth Amendment in withholding State Medicaid funds from refugees, as it is the Constitution itself that requires Tennessee to make public benefits such as Medicaid available to lawfully present aliens on the same terms as they are provided to citizens. Id. at 31, citing Graham v. Richardson, 403 U.S. 365, 371-76 (1971); see also Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (Tenth Amendment’s reservation of State power does not supersede duties “imposed upon the States by the Constitution itself”). And as Defendants also explained, the Welfare Reform Act merely limits the State’s obligation to provide Medicaid coverage to refugees that it would otherwise incur under Graham, and cannot be condemned as an affront to State sovereignty. Defs.’ Mem. at 32.
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Lacking arguments to the contrary, Plaintiffs reveal the true essence of their complaint— that the Federal Government is “passing the costs” onto States of providing Medicaid coverage to refugees that the Government, exercising its plenary authority over immigration, decides to admit to this country. Pls.’ Opp. at 1, 23. Attempting to clothe this grievance in Tenth Amendment garb, Plaintiffs contend that the Government’s actions unconstitutionally “commandeer[ ] State funds and coerc[e] the State to expend funds to support and maintain a federal program.” Id. at 1, 18, 23. This argument ignores the plain reality that Tennessee’s fiscal options are “increased, not constrained,” by its participation in the Medicaid program. Kansas v. United States, 214 F.3d 1196, 1203-04 (10th Cir. 2000). Plaintiffs also cite no precedents supporting their argument, which is contrary to established law.
The proposition that the Federal Government violates the Tenth Amendment simply because its exercise of powers delegated to it by the Constitution has a financial impact on the States has been refuted time and again by decisions of the Supreme Court, the Sixth Circuit, and other courts of appeals. In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), the Court held that the Tenth Amendment did not prohibit Congress from extending the minimum-wage and overtime-pay provisions of the Fair Labor Standards Act (FLSA) to cover State and local-government employees. Id. at 555-57 (overruling Nat’l League of Cities v. Usery, 436 U.S. 833 (1976)). The Court reached this conclusion notwithstanding the “financial impact on States and localities,” and the “serious … effects on state and local planning, budgeting, and the levying of taxes.” Id. at 578 (Powell, J., dissenting).
The Court similarly held, in Maryland v. Wirtz, 392 U.S. 183 (1968), that the minimumwage and overtime-pay requirements of the FLSA could validly be applied to employees of certain State schools, hospitals, and other institutions, id. at 93-99, over the objections of the dissent that the Act’s requirements would “disrupt the fiscal policy of the States” in disregard of
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“state sovereignty protected by the Tenth Amendment,” id. at 201-03 (Douglas, J., dissenting).5 In Reno v. Condon, 528 U.S. 141 (2000), the Court rejected a Tenth Amendment challenge to the Driver’s Privacy Protection Act (DPPA) (a law that “regulate[d] the States exclusively,” id. at 151) notwithstanding that the Act restricted sales of drivers’ personal information that “generate[d] significant revenues for the States,” id. at 143-44, and that compliance with the Act’s restrictions would “consume the employees’ time and thus [State] resources,” id. at 150.
Citing Garcia, the Sixth Circuit recently rejected a claim that the Affordable Care Act (ACA) violates the Tenth Amendment by requiring that group health plans offered by States to their employees make millions of dollars in payments to the Federal Government to subsidize health-care coverage of high-risk individuals. Ohio v. United States, 849 F.3d 313, 321-23 (6th Cir. 2017). In reaching the same conclusion, the district court in Ohio expressly rejected the argument that “impos[ing] financial consequences on a state government” necessarily violates the Tenth Amendment, noting that the Supreme Court “ha[d] rejected the argument that a federal statute requiring the expenditure of state funds to comply with it amounts to a Tenth-Amendment violation.” Ohio, 154 F.3d at 656-58. See also Florida ex rel McCollum v. United States, 716 F. Supp. 2d 1120, 1151-54 (N.D. Fla. 2010) (dismissing claim that provisions of the ACA interfered with State sovereignty, notwithstanding “adverse[ ] impact [on] the state fisc”).
Plaintiffs’ contention that “passing on” costs of refugee health-care to the States “commandeers” State funds is also indistinguishable from Tenth Amendment claims previously made by States that the Government’s alleged failure to control illegal immigration “coerced” them into paying the costs of educational services for illegal alien children. See, e.g., Padavan v.
5 Wirtz was overruled by the Court in Usery, 436 U.S. at 854-55, but Usery, in turn, was overruled by Garcia, 469 U.S. at 556-57, “placing Wirtz back on solid ground.” Ohio v. United States, 154 F. Supp. 3d 621, 657 (S.D. Ohio 2016), aff’d, 849 F.3d 313 (6th Cir. 2017).
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United States, 82 F.3d 23, 25-26, 28 (2d Cir. 1996). All courts of appeals to consider this claim rejected it, observing that the Government was not “commandeering” the States to provide free public education to undocumented children, but rather, that the States were required to do so by the Equal Protection Clause, as held in Plyler v. Doe, 457 U.S. 202 (1982). See California v. United States, 104 F.3d 1086, 1093 (9th Cir. 1997) (“Because the State’s obligation to provide this education derives from an independent constitutional obligation and not federal immigration policy … the Tenth Amendment is not implicated.”); Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997) (same); New Jersey v. United States, 91 F.3d 463, 465 (3d Cir. 1996) (same); Padavan, 82 F.3d at 29. Likewise, because Tennessee’s obligation to provide Medicaid benefits to refugees on the same terms as U.S. citizens ultimately derives from the Constitution, Graham, 403 U.S. at 371-76, and not Federal refugee policy, Plaintiffs’ refrain about “passing on” costs to the States implicates no Tenth Amendment concerns.6
Plaintiffs cite no authority to the contrary, apart from snippets quoted out of context from Printz v. United States, 521 U.S. 898 (1997). Printz held that the Brady Act violated the residual sovereignty of the States by imposing an unconditional legal obligation on state law enforcement officials to conduct background checks on prospective handgun purchasers. Id. at 933-34. “The Federal Government,” the Court held, “may not compel the States to enact or administer a
6 Seeking to avoid this conclusion, Plaintiffs attempt to argue that the Welfare Reform Act actually imposes costs on Tennessee, rather than limiting the costs of providing Medicaid coverage to refugees that it would otherwise incur under Graham. Pls.’ Opp. at 21-26. First they contend that it is speculative whether the Act in fact reduces the cost of refugee resettlement to Tennessee. Id. at 2, 25. But it is incontrovertible that the Welfare Reform Act limits the State’s cost of Medicaid coverage for refugees to a sum that is less than, or at most equal to, what would otherwise be required by Graham. See Defs.’ Mem. at 31-32. Plaintiffs next observe that the Act provides refugees greater access to Medicaid benefits than other lawful aliens. Pls.’ Opp. at 21-23; see also id. at 24-25. But that does not mean that the Act imposes additional costs on the States. It means only that Congress did not go as far in the case of refugees in relieving States from the financial burden of Graham’s mandate.
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federal regulatory program.” Id. at 933 (citation omitted); see id. at 919-20; Cutter v. Wilkinson, 423 F.3d 579, 589 (6th Cir. 2005) (“Together New York [v. United States, 505 U.S. 144 (1992)] and Printz stand for the unexceptionable proposition that Congress cannot force the states to enact or administer a federal regulatory scheme.”). As Defendants have shown, no Federal law compels Tennessee to participate in the Refugee Resettlement Program. Defs.’ Mem. at 10. Plaintiffs seek to construe Printz more broadly, however, as prohibiting the Federal Government from “forc[ing] ‘state governments to absorb the financial burden of implementing a federal … program.’” Pls.’ Opp. at 23, quoting Printz, 521 U.S. at 930; see also id. at 19, 21. That reading of Printz is untenable in light of subsequent cases, particularly Condon. There, notwithstanding the financial burden on the States of complying with the DPPA, the Court unanimously “reject[ed] the … argument that the DPPA violates the principles laid down in … Printz.” 528 U.S. at 150. As recognized by the district court in Ohio, Condon “demonstrates the fallacy with the State’s commandeering-through-financial-impact argument.” 154 F. Supp. 3d at 658.
B. NFIB Is Inapposite. Finally, Plaintiffs fail to bring this case within the scope of NFIB. As Defendants explained, the controlling plurality in NFIB held that the ACA unconstitutionally compelled the States “to accept policy changes” by conditioning their continued receipt of Medicaid grants on implementing what the Court considered to be an entirely new program of health-care coverage that they could not have anticipated. 567 U.S. at 580-85; see Defs.’ Mem. at 33-34. Plaintiffs do not dispute this understanding of the plurality’s rationale, see Pls.’ Opp. at 20; rather, they attempt to make a case that changed conditions and modifications to the Refugee Resettlement Program have transformed it into a “new program” that Tennessee could not have foreseen, id. at 27-29. None of the circumstances described in the Complaint, or in Plaintiffs’ brief, depicts the kind of dramatic programmatic transformation that underlies the ruling in NFIB.
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Plaintiffs first point to the fact that, although the Refugee Act as passed in 1980 authorized the Government to reimburse the States for the cost of providing Medicaid coverage to refugees, by 1991 Congress had ceased to appropriate funds for that purpose. Pls.’ Opp. at 27-28; see Defs.’ Mem. at 9 & n.5. Having continued, however, to participate in the Medicaid program for more than a quarter century since this source of funding expired, Tennessee cannot now claim “surprise” that it must cover its share of refugee Medicaid costs without reimbursement from the Federal Government. That is all the more so considering that in the more than 45 years since Graham was decided, routine Federal reimbursement for the States’ share of refugee Medicaid costs was at most an 11-year exception, not the rule.
Plaintiffs next maintain that the growing number of refugees admitted “in recent years” has unexpectedly increased the cost of refugee health-care to the States. Pls.’ Opp. at 29.7 But the periodic outbreak of international humanitarian crises—such as the crisis in Syria—followed by mounting numbers of refugees seeking to resettle on our shores, is an historically foreseeable phenomenon. Indeed, the stated purpose of the Refugee Act of 1980 was “to establish a coherent and comprehensive U.S. refugee policy” to replace the “patchwork of different programs that [had] evolved in response to specific crises,” H.R. Rep. No. 96-608, at 1 (1979); S. Rep. No. 96256, at 4 (1979), including (but by no means limited to) the flight of East European peoples from Communist regimes following World War II, the Cuban refugee crisis of the early 1960s, and the exodus of Indochinese refugees following the U.S. withdrawal from Vietnam. See H.R. Rep. No. 96-608, at 2-6; S. Rep. No. 96-256, at 4-5, 10-11. Accordingly, the Act has always provided for flexibility, not consistency, in annual refugee admissions. Under the Act’s terms “the
7 As an initial matter, the facts on which this argument is based are not pled in the Complaint, but are plucked from an exhibit attached to Plaintiffs’ brief, and the argument should be rejected as another impermissible attempt by Plaintiffs to “amend [their] complaint through arguments in an opposition brief.” See supra at 2, quoting Tangas, 2016 WL 614006, at *4.
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number of refugees who may be admitted” each year is not fixed, or determined according to a prescribed formula, but “shall be such number as the President determines, before the beginning of the fiscal year … is justified by humanitarian concerns or is otherwise in the national interest.” 8 U.S.C. § 1157(a)(2). The President may also admit additional numbers of refugees as needed to meet “unforeseen emergency refugee situation[s].” Id. § 1157(b). Given the history of recurrent refugee crises, and the purposes and plain terms of the Refugee Act, peaks and valleys in the numbers of annual refugee admissions are to be expected.
Lastly, Plaintiffs maintain that Tennessee could not have anticipated that the Federal Government would continue to resettle refugees there (who enroll in Medicaid at State expense) following Tennessee’s withdrawal from the Refugee Resettlement Program in 2008. Pls.’ Opp. at 28, 29. But as Defendants have already explained, nothing in the Refugee Act conditions the resettlement of refugees in a State on the State’s participation in the Program. Defs.’ Mem. at 10. Moreover, the Government’s practice of relying on private non-profit organizations to administer refugee resettlement in States that elect to discontinue participation in the Program, see id. (describing such “Wilson/Fish” programs), was well-established by at least 1999, nearly a decade before Tennessee made its decision to withdraw. See Notice of Availability of Funding, 64 Fed. Reg. 19793, 19794 (Apr. 22, 1999) (noting availability of Wilson/Fish funding, and two pre-existing projects, where States “discontinue[d] participation in the program”).
In brief, none of the events described by Plaintiffs represents a departure, much less a radical change, from the settled understanding pursuant to which Tennessee has accepted Federal Medicaid funds for over 40 years—that it must cover lawfully present aliens, including refugees, under its Medicaid program. See Defs.’ Mem. at 34. NFIB does not apply here.
CONCLUSION Defendants’ motion to dismiss should be granted.
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Dated: August 18, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
LAWRENCE J. LAURENZI Acting United States Attorney
JENNIFER D. RICKETTS Director
/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel
STUART J. ROBINSON Trial Attorney
United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 6102 Washington, D.C. 20530 Tel: 202-514-3358 E-mail: james.gilligan@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE Pursuant to LR 7.2(a)(1), I hereby certify that on August 18, 2017, I served the foregoing Reply Memorandum in Support of Defendants’ Motion to Dismiss on all counsel of record by filing it with the Court by means of its Electronic Case Filing system.
/s/ James J. Gilligan James J. Gilligan Counsel for Defendants

 </s> Case 1:17-cv-01040-STA-egb Document 45 Filed 03/19/18 Page 1 of 43 PageID 1119

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

STATE OF TENNESSEE, et al. Plaintiffs,
v. U.S. DEPARTMENT OF STATE, et al.,
Defendants, v. TENNESSEE IMMIGRANT AND REFUGEE RIGHTS COALITION, et al.,
Intervenor-Defendants.

) ) ) ) ) No. 1:17-cv-01040-STA-egb ) ) ) ) ) ) ) ) ) ) )

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING MOTION TO INTERVENE AS MOOT
Plaintiffs Tennessee General Assembly, in its own right and on behalf of the State of Tennessee, State Senator John Stevens, individually and in his official capacity, and State Representative Terri Lynn Weaver, individually and in her official capacity, have brought this action contending that federal laws requiring the State of Tennessee to provide Medicaid benefits to refugees, under threat of losing its federal Medicaid funding, coerce the State into subsidizing the federal Refugee Resettlement Program. Plaintiffs have sued the United States Department of State; Rex Tillerson, in his official capacity as Secretary of State; the Bureau of Population, Refugees, and Migration (“PRM”); Simon Henshaw, in his official capacity as Acting Assistant Secretary of State for the PRM; United States Department of Health and Human Services (“HHS’); Thomas E. Price, in his official capacity as Secretary of HHS; the Office of Refugee Resettlement (“ORR”); and Ken Tota, in his official capacity as Acting Director of ORR

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(collectively the “Federal Government”). Plaintiffs seek a declaration that the challenged laws exceed Congress’s authority under the United States Constitution’s Spending Clause and violate the Tenth Amendment to the Constitution. They also seek injunctive relief prohibiting further refugee resettlements in Tennessee until the Federal Government absorbs all costs of those resettlements.
Defendants have filed a motion to dismiss for lack of subject-matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted. (ECF No. 24.) Plaintiffs have filed a response to the motion (ECF No. 38), Defendants have filed a reply to the response (ECF No. 39), and Plaintiffs have filed a sur-reply.1 (ECF No. 40.) For the reasons set forth below, the motion to dismiss is GRANTED.
Tennessee Immigrant and Refugee Rights Coalition, on behalf of itself and its members, Bridge Refugee Services Inc., and Nashville International Center for Empowerment, has filed a motion to intervene on behalf of Defendants. (ECF No. 25). Because the Court grants Defendants’ motion to dismiss, the motion to intervene is DENIED as moot.
Background Congress created the Medicaid program through enactment of Title XIX of the Social Security Act, Pub. No. L. 89-97, 79 Stat. 286, codified at 42 U.S.C. § 1396 et seq. See generally Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 65051 (2003) (discussing the Medicaid program and its purpose).2 “Medicaid is a cooperative federal-state program through which the Federal Government provides financial assistance to States so they may furnish 1 Plaintiffs also filed a notice of supplemental authority on November 22, 2017. (ECF No. 44.) 2 As background for their motion, Defendants have described the Medicaid program, the administrative procedures associated with it, and various refugee programs relevant to this case. Plaintiffs have not disputed that this description is an accurate representation of the programs and procedures. Therefore, the Court has summarized the information presented by Defendants.
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medical care to needy individuals.” Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990) (citation omitted). See also In re Estate of Trigg, 368 S.W.3d 483, 499 (Tenn. 2012) (“The program is jointly funded by the federal government and the states, and each state operates its own program in accordance with federal requirements.”).
Tennessee’s participation in the Medicaid program began when the General Assembly enacted the Medical Assistance Act of 1968. Roberts v. Sanders, 2002 WL 256740 at *5 (Tenn. Ct. App. Feb. 22, 2002) (citing Act of Apr. 3, 1968, ch. 551, 1968 Tenn. Pub. Acts 496 (codified as amended at Tenn. Code Ann. §§ 71-5-101119 (1995 & Supp. 2001))).3 Participation in the program is voluntary, but participating states must comply with the requirements imposed by the statute and with regulations promulgated by the Secretary of HHS. Wilder, 496 U.S. at 502. See also Roberts, 2002 WL 256740 at *5 (While each state operates its own Medicaid program, each state must conform to federal requirements in order to receive federal matching funds.”)
One of those requirements is that each state must have an approved plan that provides coverage for specified groups. 42 U.S.C. § 1396a(a)(10)(A)(i), (b); 42 C.F.R. § 430.10. That is, participating states must provide full Medicaid services under the approved state plan to groups of individuals who meet the eligibility criteria. See Lewis v. Thompson, 252 F.3d 567, 570 (2d Cir. 2001) (“States enjoy some flexibility in determining the breadth of a Medicaid plan, but are nonetheless cabined by a set of eligibility rules.”)
Each state with an approved plan receives payments from the Federal Government according to a formula set out by statute. 42 U.S.C. § 1396d. If there is a determination that the state’s plan or its administration of the plan no longer complies with Medicaid requirements, the
3 In Tennessee, the Medicaid program is known as TennCare and is jointly funded by Tennessee and the Federal Government. (Compl. ¶ 34.)
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Secretary will either withhold further payments to the state or may “limit payments to categories under or parts of the State plan not affected” by the non-compliance. 42 U.S.C. § 1396c.
A finding of non-compliance results in the following administrative process. First an attempt is made by the HHS Centers for Medicare & Medicaid Services (“CMS”) to resolve the matter informally. 42 C.F.R. §§ 430.32, 430.35. If these efforts are unsuccessful, CMS initiates a formal compliance action by letter to the state which sets forth the finding of non-compliance, provides notice that some or all federal funding will be withheld absent compliance, and explains that the state has an opportunity for an evidentiary hearing before any payments will be withheld. 42 C.F.R. §§ 430.35(a) & (d), 430.70, 430.83430.88. If an adverse ruling is made, the state may seek review by the Administrator. Id. §§ 430.80(a)(11), 430.102(b). The Administrator’s decision constitutes the final decision of the agency and is the earliest point at which federal funds can be withheld. Id. §§ 430.102(c), 430.104(c). A state may seek review of the final agency decision in the United States Court of Appeals for the circuit in which the state is located. 42 U.S.C. § 1316(a)(3); 42 C.F.R. § 430.38(a) - (b). A similar administrative process allows a state to seek appellate-court review of CMS’s disapproval of a proposed plan amendment. 42 U.S.C. § 1316(a).
The original Medicaid statute was “silent on the availability of Medicaid to aliens.” Lewis, 252 F.3d at 571. However, in 1973 the Secretary issued a rule requiring coverage of all lawful permanent residents and other aliens “permanently residing in the United States under color of law.” 45 C.F.R. § 248.50 (1973). The purpose of the 1973 rule was to implement the Supreme Court’s decision in Graham v. Richardson, 403 U.S. 365, 376, 380 (1971), see 37 Fed. Reg. 11977 (June 16, 1972), in which the Court held that state laws denying welfare benefits to resident aliens violated the Equal Protection Clause of the Fourteenth Amendment and
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impermissibly encroached upon exclusive federal power over the admission of aliens and the conditions of their residence.
In 1996 Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996), known as the Welfare Reform Act of 1996. In this Act, Congress announced a “national policy with respect to welfare and immigration.” Korab v. Fink, 797 F.3d 572, 580 (9th Cir. 2014) (quoting 8 U.S.C. § 1601). The Act “establish[ed] a uniform federal structure for providing welfare benefits to distinct classes of aliens.” Id. at 581. Reaffirming national policy that “aliens within the Nation’s border [should] not depend on public resources to meet their needs,” 8 U.S.C. § 1601(2)(A), the Act “impos[ed] sweeping restrictions on aliens’ access to federally sponsored government aid” such as Medicaid. Lewis, 252 F.3d at 57778; see also Bruns v. Mayhew, 750 F.3d 61, 63 (1st Cir. 2014) (citation omitted) (“For years, federal Medicaid extended medical assistance to eligible individuals without regard to citizenship status or durational residency. By act of Congress, however, the alien eligibility requirements for publicly-funded benefits, including Medicaid, changed dramatically in 1996.”).
The Act separated aliens in the United States into two classes – qualified aliens who may be eligible for certain federally funded benefits and all other aliens who generally are not. 8 U.S.C. §§ 1611 - 1613, 1641. The definition of “qualified alien[s]” includes lawfully admitted refugees. 8 U.S.C. § 1641(b)(3). Five years following their entry into the United States, qualified aliens may be considered eligible for certain designated federal programs, including Medicaid; however, refugees are covered under Medicaid without regard to the five-year residency rule. Id. §§ 1612(b)(1), (2)(A)(i)(I)-(V), 1612(b)(3)(A)-(C), 1613(a), (b)(1). Medicaid coverage must be provided to eligible refugees for seven years following their admission to the United States, after which coverage of refugees becomes optional at the state’s discretion. Id. §
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1612(b)(1), (2)(A)(i). If the refugee resettlement agency determines that a refugee is not eligible for Medicaid under the state plan, the agency looks to the Refugee Medical Assistance (“RMA”) program for benefits for the refugee. 45 C.F.R. § 400.94(d).
Pursuant to its authority to regulate the “admission, naturalization, and residence of aliens in the United States or the several states,” Toll v. Moreno, 458 U.S. 1, 11 (1982) (citation omitted), Congress enacted the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., to establish a “comprehensive and complete code covering all aspects of admission of aliens to this country.” Elkins v. Moreno, 435 U.S. 647, 664 (1978). Congress passed the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980), an amendment to the INA, which sets forth “a permanent and systematic procedure for the admission [of refugees] to this country” and “provide[s] comprehensive and uniform provisions for [their] effective resettlement.” Id. § 101(b). The Act allows for the annual admission of refugees in “such number as the President determines . . . is justified by humanitarian concerns or is otherwise in the national interest.” 8 U.S.C. § 1157(a)(2). One year following their admission, refugees must apply for permanentresident status, and they may apply for citizenship within five years. Id. §§ 1159(a), 1427(a).
The Refugee Act also “provides for federal support of the refugee resettlement process,” S. Rep. No. 96-256 at 2, authorizing the Federal Government to issue grants to and contract with state and local governments and private non-profit agencies to manage the initial admission and placement of refugees to the United States and provide subsequent resettlement assistance. 8 U.S.C. § 1522. Pursuant to this authority, the PRM maintains and oversees the United States Refugee Admissions Program, a public-private partnership involving federal agencies, domestic non-profit organizations, and international organizations to screen, transport, and provide initial resettlement services for refugees. Id. § 1522(b)(1), (7).
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The PRM works with the non-profit organizations with which it has entered into cooperative agreements to determine where refugees will be resettled in the United States. Although the PRM consults with state and local governments “concerning the sponsorship process and the intended distribution of refugees among the States and localities before their placement,” 8 U.S.C. § 1522(a)(2)(A), the Refugee Act does not provide for the involvement of state or local governments in determining where individual refugees are resettled once admitted to the United States. See H. R. Rep. No. 132, 99th Cong., 1st Sess., 19 (1985) (observing that the Act is “not intended to give States and localities any veto power over refugee placement decisions”).
Under the Refugee Resettlement Program administered by the HHS Office of Refugee Resettlement (“ORR”), the Federal Government makes grants to and contracts with states and local and private non-profit agencies to assist refugees after their initial resettlement in achieving economic self-sufficiency. See 45 C.F.R. § 400.1(a), (b). States may receive grants for refugee assistance programs. 8 U.S.C. § 1522(e). ORR is authorized to reimburse a state for its costs of assisting refugees during their first three years of residence in the United States. Id. § 1522(e)(1). However, by the early 1990s, ORR no longer reimbursed the states for the full cost of providing cash and medical assistance to refugees due to an insufficiency of funds appropriated for that purpose. See 60 Fed. Reg. 33584, 33588 (June 28, 1995).
A state wishing to participate in the Refugee Resettlement Program must submit a plan, approved by ORR, describing how it will coordinate cash and medical assistance and other services to promote refugee resettlement and economic self-sufficiency. 8 U.S.C. § 1522(a)(6); 45 C.F.R. §§ 400.4(a), 400.5(b). A state may withdraw from the program with proper notice to ORR. 45 C.F.R § 400.301(a). However, the Refugee Act does not condition the resettlement of refugees in a state on that state’s participation in the program. If a state chooses to withdraw
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from the program, under the 1984 “Wilson/Fish Amendment” ORR may select one or more other grantees, usually private non-profit organizations, to administer federal funding for cash and medical assistance and social services provided to eligible refugee populations in that state. 8 U.S.C. § 1522(e)(7); 45 C.F.R. § 400.301(c); see also 69 Fed. Reg. 17692 (Apr. 5, 2004) (announcing availability of funding for applicants “to continue the provision of refugee program services and assistance … in a State when the State elects to discontinue participation” in the Refugee Resettlement Program). ORR currently funds thirteen Wilson/Fish programs operating in twelve states, including Tennessee.
By letter dated October 29, 2007, Tennessee withdrew from participation in the Refugee Resettlement Program effective June 30, 2008. (Compl. ¶ 32, ECF No. 1.) Subsequently, Catholic Charities of Tennessee, through its affiliate the Tennessee Office of Refugees, was designated to administer the Wilson/Fish program of refugee services and assistance in Tennessee. (Id. ¶¶ 38-39.)
Background to the Complaint In 2016 the Tennessee General Assembly adopted Senate Joint Resolution 467 (“SJR 467”) (Gilligan Decl. Exh. A, ECF No. 24-3) “regarding the commencement of legal action seeking relief … from the federal government’s mandated appropriation of state revenue … with respect to refugee resettlement in Tennessee.” SJR 467 at 1.4 Reciting that requiring Tennessee to provide Medicaid benefits to eligible refugees or “risk losing all Medicaid funding” subjects the State to coercion in violation of the Tenth Amendment, the resolution calls on the Attorney General of Tennessee to initiate or intervene in litigation on the State’s behalf to seek relief regarding “any actions taken by the federal government … prohibited by the Tenth
4 There is some dispute as to whether this Resolution actually took effect. (Reply, p. 11, ECF No. 39.) However, for the purpose of deciding this motion, the Court will assume that it did, in fact, take effect.
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Amendment.” Id. at 1-3. Alternatively, the resolution authorizes the General Assembly “to employ outside counsel to commence a civil action” against the Federal Government if the Attorney General fails to do so. Id. at 4.
On July 5, 2016, the Tennessee Attorney General sent a letter to the General Assembly (“AG Letter”) declining to bring suit against the Federal Government as requested by SJR 467. (Gilligan Decl. Exh. A, ECF No. 24-3.) The Attorney General explained that “extensive review of the legal issues raised by SJR 467” had led his office “to conclude that the 10th Amendment theories that underpin SJR 467 are unlikely to provide a viable basis for legal action,” inasmuch as “[i]mmigration and refugee resettlement are matters largely reserved for federal jurisdiction.” Id. at 1, 3. However, due to the General Assembly’s “desire to resolve [its] concerns through the adjudicative process,” for purposes of this matter the Attorney General delegated his authority to bring litigation on the State’s behalf to staff counsel for the General Assembly “to the extent allowed by Tennessee law.” Id. at 4. This lawsuit then ensued.
Allegations of the Complaint Plaintiffs allege that, by enacting and implementing provisions of the Refugee Act and the Welfare Reform Act, the Federal Government has unconstitutionally “coerc[ed] the state into subsidizing,” and “commandeer[ed] state funds to finance” the Refugee Resettlement Program in Tennessee, thus “impermissibly intrud[ing] on Tennessee’s state sovereignty.” (Compl. ¶¶ 3, 4, 7.) Specifically, Plaintiffs contend that, following Tennessee’s withdrawal from the Refugee Resettlement Program in 2008, (id. ¶ 32), the Federal Government, rather than discontinuing refugee resettlements in Tennessee, “bypassed” the State and appointed Catholic Charities of Tennessee to continue the resettlement program in Tennessee. (Id. ¶¶ 38-39.) Plaintiffs allege that, under the mandate to provide Medicaid benefits to otherwise eligible refugees located in the State, 8 U.S.C. § 1612, Tennessee must spend in excess of $30 million each year to fund the
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Refugee Resettlement Program, (id. ¶ 29), despite its withdrawal from the program. (Id. ¶¶ 36, 37, 41.)
Plaintiffs further allege that “[i]f Tennessee refuses to expend state funds to provide these refugee services through Medicaid, the state is subject to a loss of nearly $7 billion” in federal Medicaid funds which amounts to “20% of its total state budget.” (Id. ¶¶ 35, 42, 54.) According to Plaintiffs, by “threatening” Tennessee with this loss, the Federal Government has “coerced the state to continue funding the refugee resettlement program” and “thereby commandeered state funds to support a federal initiative.” (Id. ¶ 33.) Additionally, the Federal Government’s actions allegedly “deprive …Tennessee of its sovereignty,” (id. ¶¶ 46, 56), in excess of Congress’s power under the Spending Clause and in violation of the Tenth Amendment. (Id. ¶¶ 3, 48, 50, 51,59.)
According to Plaintiffs, the “refugee resettlement program also commandeers other state funds and instrumentalities through health and welfare programs and public schooling, including the program known as ‘English Language Learners,’ as mandated by 20 U.S.C. § 1703.” (Id. ¶ 47.)
Plaintiffs seek declaratory relief and an injunction prohibiting resettlement of additional refugees in Tennessee unless and until the Federal Government pays for and absorbs the costs of the resettlement program “without any involuntary contribution” from the State. (Id., Prayer for Relief, ¶¶ 1-3.)
Motion to Dismiss for Lack of Subject Matter Jurisdiction A complaint may be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of jurisdiction. Under Rule 12(b)(1), a motion to dismiss “may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). “A facial attack is a challenge to the
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sufficiency of the pleading itself,” and “the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (citation omitted). “A factual attack, on the other hand, is . . . a challenge to the factual existence of subject matter jurisdiction.” Id. With a factual attack, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citation omitted). The plaintiff bears the burden of proving that jurisdiction exists. Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (explaining that, when “subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion”).
“Proper jurisdiction is a requirement in determining the validity of a claim, and as such, Rule 12(b)(1) motions must be considered prior to any other challenges.” Lemke v. H&R Block Mortg. Corp., 2012 WL 715894 at *1 (E.D. Mich. Mar. 6, 2012) (citing Bell v. Hood, 327 U.S. 678 (1946)). See also Moir, 895 F.2d at 269 (quoting Bell v. Hood for the proposition that, when a defendant moves to dismiss under both Rule 12(b)(1) and (b)(6), the court should consider the 12(b)(1) motion first because “the 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction.”).
Because Defendants contend that this Court lacks subject matter jurisdiction over the complaint, the Court will first consider the request for relief under Rule 12(b)(1). Defendants specifically contend that this Court lacks subject-matter jurisdiction over Plaintiffs’ claims for the following reasons: (1) Plaintiffs lack standing to bring their claim; (2) the claim is not ripe for review; and (3) review of Plaintiffs’ claim in this Court is precluded by the Medicaid Act. The Court finds Defendants’ contentions to be meritorious. Standing
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Defendants argue that neither the General Assembly nor the individual legislators have alleged that the State’s duty to cover refugees under Medicaid inflicts concrete and particularized injuries on them as required to establish standing under Article III. Also according to Defendants, although the General Assembly asserts that it may sue on the State’s behalf under a delegation of authority from the Attorney General, Tennessee law does not permit the Attorney General to delegate such authority to the General Assembly.
Article III of the United States Constitution endows federal courts with “[t]he judicial Power of the United States;” however, this power extends only to “cases” and “controversies.” “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (citation omitted). The standing requirement limits federal court jurisdiction to actual controversies so that the judicial process is not transformed into “a vehicle for the vindication of the value interests of concerned bystanders.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982) (quoting United States v. SCRAP, 412 U.S. 669, 687 (1973)).
Because Tenth Amendment challenges “often involve controversial policy questions that courts are ill-equipped to handle and that put the courts at particular risk of encroaching on the proper domain of the political branches,” before proceeding to the merits of a claim, it is “incumbent upon a federal court to ensure that a State asserting such a claim has alleged a ‘particularized, concrete, and otherwise judicially cognizable’ injury.” West Virginia v. United States Dep’t of Health & Human Servs., 145 F. Supp. 3d 94, 110 (D.D.C. 2015), aff’d sub nom. West Virginia ex rel. Morrisey v. U.S. Dep’t of Health & Human Servs., 827 F.3d 81 (D.C. Cir. 2016).
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As explained in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), as revised (May 24,
2016),
Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. In this way, “[t]he law of Article III standing ... serves to prevent the judicial process from being used to usurp the powers of the political branches,” and confines the federal courts to a properly judicial role.
Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. [When], as here, a case is at the pleading stage, the plaintiff must “clearly ... allege facts demonstrating” each element.
Spokeo, 136 S. Ct. at 1547; see also United States v. Hall, 877 F.3d 676, 681 (6th Cir. 2017)
(reiterating the requirements of Article III standing). A plaintiff must plead the elements of
standing with specificity. See Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999)
(stating that a “plaintiff bears the burden of demonstrating standing and must plead its
components with specificity”). “[E]ach element must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992).
Injury in fact is the “[f]irst and foremost” of the three elements. Steel Co. v. Citizens for
Better Environment, 523 U.S. 83, 103 (1998). To establish injury in fact, a plaintiff must show
that he suffered “an invasion of a legally protected interest” that is “concrete and particularized”
and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. For an injury
to be “particularized,” it “must affect the plaintiff in a personal and individual way.” Id. at 560
n.1. For an injury to be “concrete,” it “must actually exist.” Spokeo, 136 S. Ct. at 1548. For an
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injury to be “actual or imminent,” the “threatened injury must be certainly impending to constitute injury in fact” - “[a]llegations of possible future injury” are not sufficient. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 40910 (2013) (citations omitted).5 The injury-in-fact requirement helps to ensure that the plaintiff has a “personal stake in the outcome of the controversy.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Only one party to a lawsuit need have standing to satisfy Article III and survive a motion to dismiss. See Horne v. Flores, 557 U.S. 433, 44547 (2009) (“[T]he critical question is whether at least one petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.”)
State Legislators State Senator John Stevens and State Representative Terri Lynn Weaver have brought this action individually and in their official capacities as Tennessee elected officials. According to the complaint, “[t]he actions of the federal government that give rise to this case impede and interfere with Senator Stevens’s ability to fully discharge his duties as a member of the Tennessee General Assembly and as a leader on the Senate Standing Committee on Finance, Ways and Means,” and “[t]he actions of the federal government that give rise to this case impede and interfere with Representative Weaver’s ability to fully discharge her duties as a member of the Tennessee General Assembly and as a leader and member of the committees on which she serves.” (Compl. ¶¶ 8-9.) Defendants maintain that Plaintiffs Stevens and Weaver lack standing both individually and in their official capacities, and the Court agrees.
5 “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes - that the injury is certainly impending.” Lujan, 504 U.S. at 565 n.2 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
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As noted by Defendants, Plaintiffs’ response does not address Defendants’ argument that the complaint contains no allegations of personal injury to the legislators that would support their standing as individuals. Instead, Plaintiffs argue that the legislators have met the requirements of Article III because the General Assembly has standing and has designated them to act on its behalf. Accordingly, the Court finds that Plaintiffs have abandoned their individual capacity theory of standing, see Montgomery v. Kraft Foods Glob., Inc., 2012 WL 6084167 at *6 (W.D. Mich. Dec. 6, 2012), aff’d, 822 F.3d 304 (6th Cir. 2016) (“The Court also notes that Plaintiff failed to specifically respond to Defendants’ arguments regarding subsection (h) in either of Plaintiff’s briefs in opposition to the motions to dismiss, thereby effectively abandoning the claim.”), and will address only their official capacity theory of standing.6
The Supreme Court examined legislator standing in Raines v. Byrd. In Raines, six members of Congress sued to invalidate the Line Item Veto Act, 2 U.S.C. §§ 691692, on separation-of-powers grounds, arguing that the authority conferred by the Act on the President to cancel certain spending measures within appropriations bills rendered their votes on such legislation less effective. 521 U.S. at 81416. In determining that the individual members of Congress did not have standing to bring suit, the Court explained that the harm described by the legislators was “a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.” Id. at 821. Having asserted an injury that was “wholly abstract and widely dispersed,” the legislators “[did] not have a sufficient ‘personal stake’ in the dispute and [did] not allege[] a sufficiently concrete injury” and, therefore, failed to meet the requirements of Article III. Id. at 82930. That is,
6 In their sur-reply, Plaintiffs reference the declarations of Defendants Stevens (ECF No. 38-1) and Weaver (ECF No. 38-2) as supporting a finding that they have standing to sue as individuals. However, Plaintiffs have merely cited the declarations and have not explained how the declarations support their argument.
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“[n]one of the plaintiffs … could tenably claim a ‘personal stake’ in the suit.” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015) (discussing Raines).
Less than two months after the decision in Raines, President William J. Clinton “exercised his authority to cancel one provision in the Balanced Budget Act of 1997, Pub.L. 105–33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub.L. 10534, 111 Stat. 788, 895–896, 990–993.” Clinton v. City of New York, 524 U.S. 417, 421 (1998). The constitutionality of the Line Item Veto Act was again challenged, but this time the Court held that the plaintiffs had standing to challenge of the Act. “Our disposition of the first challenge [in Raines] to the constitutionality of this Act demonstrates our recognition of the importance of respecting the constitutional limits on our jurisdiction, even when Congress has manifested an interest in obtaining our views as promptly as possible. But these cases differ from Raines, not only because the President’s exercise of his cancellation authority has removed any concern about the ripeness of the dispute, but more importantly because the parties have alleged a ‘personal stake’ in having an actual injury redressed rather than an ‘institutional injury’ that is ‘abstract and widely dispersed.’” Id. at 430 (citation omitted). The Court then found that “the cancellation procedures set forth in the Act violate[d] the Presentment Clause, Art. I, § 7, cl. 2, of the Constitution.” Id. at 421.
Here, the alleged injury to Plaintiffs Stevens and Weaver in their official capacities is the type of non-personal harm that the Supreme Court rejected in Raines. Plaintiffs Stevens and Weave assert that Defendants’ actions “impede and interfere” with their “ability to fully discharge [their] duties” as members of the General Assembly and of their respective legislative committees. (Compl. ¶¶ 89.) Such an injury is “wholly abstract,” Raines, 521 U.S. at 82526, 829, as it is based on the idea that compelled expenditures of state funds for the Refugee
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Resettlement Program will interfere with their ability to appropriate state funds for other purposes and, therefore, dilute their legislative power. In arguing that Defendants’ actions interfere with the work of the House Transportation Subcommittee (Compl. ¶ 9), which has no readily apparent nexus to the Refugee Resettlement Program, Plaintiffs implicitly acknowledge that “[t]he ‘institutional injury’ at issue . . . scarcely zeroe[s] in on any individual Member,” Arizona State Legislature, 135 S. Ct. 2652, 2664 (2015), and, instead, is shared by all members of the General Assembly. Accordingly, because they lack a particularized injury in the dispute, Plaintiffs Stevens and Weaver have no standing in their official capacities to file suit in this matter.
Nor can Plaintiffs Stevens and Weaver file suit on behalf of the General Assembly because, as discussed below, the General Assembly itself lacks standing to file suit in this matter. State law confers upon the Attorney General the authority to initiate suit on behalf of the State or General Assembly. Senate Joint Resolution 467 does not give Plaintiffs the authority to file suit because a resolution cannot amend a statute or constitutional provision. See, e.g., Vertrees v. State Bd. of Elections, 214 S.W. 737, 742 (Tenn. 1919);7 Tennessee General Assembly, How A Bill Becomes A Law, http://www.capitol.tn.gov/about/billtolaw.html (“Resolutions differ from bills in that they do not become law but simply serve to express the views of the majority of one or both houses of the Legislature.”) (last visited March 5, 2018). “The resolution, however, can be looked to as an expression of the opinion of the Legislature and as an expression of legislative advice.” Vertrees, 214 S.W. at 742.
7 In Vertrees, the Tennessee Supreme Court had under consideration the validity of Chapter 139, Pub. Acts of 1919, which conferred upon women the right to vote for electors for President and Vice President of the United States. The Act was sustained upon the ground that Tennessee’s Constitution made no provision as to the manner of their election and hence the election of such officers could be “made in such manner as the Legislature shall direct.” 214 S.W. at 739.
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Neither can Plaintiffs rely on the letter from “Tennessee Attorney General Herbert H. Slatery, III, specifically delegating his constitutional and statutory authority to the General Assembly to commence litigation on behalf of the State of Tennessee and the General Assembly for the purpose of pursuing litigation challenging the constitutionality of the federal government’s refugee resettlement program and other issues raised by SJR 467” (Compl. ¶ 6) as a basis for standing. In his letter, the Attorney General declined “to initiate a cause of action based upon untested, novel theories of coerced spending or commandeering of the budget process” and determined that “the 10th Amendment theories that underpin SJR 467 are unlikely to provide a viable basis for legal action.” (Slatery Letter p. 3, ECF No. 38-7.) Although the letter purported to delegate the Attorney General’s “authority to commence litigation on behalf of the State of Tennessee to staff counsel for the General Assembly for the limited purpose of pursuing litigation to address the issues raised in SJR 467,” it did so only “to the extent allowed by Tennessee law.” (Id. at p. 4.) Accordingly, the Court finds that Plaintiffs Stevens and Weaver have no standing to sue in either their individual or their official capacities.
General Assembly On Behalf of Itself Defendants rely on Arizona State Legislature v. Arizona Independent Redistricting Commission in support of their argument that the General Assembly does not have standing to bring this lawsuit in its own right. Arizona State Legislature concerned a ballot initiative that purported to amend the state constitution to transfer congressional redistricting authority from the state legislature to a new independent commission. The state legislature brought suit against the commission, seeking to overturn the amendment as being in conflict with the Elections Clause, United States Constitution Article I. 135 S. Ct. at 2662. In considering the question of standing, the Supreme Court held that the legislature had adequately alleged an institutional injury because the ballot initiative “together with the Arizona Constitution’s ban on efforts to
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undermine the purposes of an initiative . . . would ‘completely nullif[y]’ any vote by the Legislature, now or ‘in the future,’ purporting to adopt a redistricting plan.” 135 S. Ct. at 2665 (citing Raines, 521 U.S. at 82324).
Plaintiffs contend that, under Arizona State Legislature, the General Assembly has standing because a majority of its members voted to authorize the lawsuit. However, Arizona State Legislature does not provide that authorization alone is sufficient to confer standing on the legislature. Instead, the Court’s decision was based on an alleged complete loss of legislative power, as opposed to a mere dilution of that power. Id. at 266365. Here, the General Assembly alleges a deprivation “of [its] ability to spend state funds in the manner the people of Tennessee may . . . deem most appropriate.” (Compl. ¶ 7.) Because this claim of injury acknowledges that the General Assembly still retains its appropriations authority, it is more akin to the “abstract dilution of institutional legislative power” described in Raines, 521 U.S. at 826, rather than the total loss of redistricting authority at issue in Arizona State Legislature.
Plaintiffs additionally argue that the injury at issue in this case is the General Assembly’s right to appropriate state funds and that legislatures have standing to protect their “quasisovereign” interests when there is “coercive pressure” from the Federal Government involving the potential loss of federal funding. Although Plaintiffs are correct that the General Assembly has standing to protect itself from injury to its legislative authority under Arizona State Legislature, a legislature must establish that it has suffered a concrete and particularized injury, i.e., a complete loss of legislative power, in order to meet the requirements of Article III. Plaintiff General Assembly on behalf of itself has not satisfied that standard in that it has not alleged a complete loss of power to enact appropriations legislation. Instead, the allegation is that the preferred legislation, once enacted, might conflict with federal law.
General Assembly on Behalf of the State of Tennessee
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The General Assembly also asserts standing to bring this lawsuit on behalf of the State under SJR 467 and the purported delegation of authority from the Tennessee Attorney General in his letter declining to file suit. Plaintiffs contend that, while the joint resolution was not necessary for it to bring this suit in the State’s name, the enactment established a process for proceeding to litigation. Plaintiffs reason that, because the General Assembly is not before this Court invoking the name of the State to exercise executive power but, instead, is suing to remedy infringement upon its legislative powers, they may file suit on behalf of the State.
Defendants acknowledge that parties who lack standing in their own right may represent the State if state law authorizes them to “to speak for the State in federal court,” Hollingsworth v. Perry, 570 U.S. 693, 710 (2013) (citing Karcher v. May, 484 U.S. 72, 8182 (1987)), but argue that is not the case here. Instead, they contend that the Constitution and laws of Tennessee confer on the Attorney General  and not the Legislature  the authority to litigate on behalf of Tennessee.
Tenn. Code Ann. § 8-6-110 provides that “[t]he attorney general and reporter shall attend in person, or by assistant, and prosecute or defend . . . any and all suits . . . in which suit or suits the state may be a party, or in which the state has or may have interests of a pecuniary nature.” Additionally, the General Assembly has listed as exclusive duties of the Attorney General “[t]he trial and direction of all civil litigated matters and administrative proceedings in which the state or any officer, department, agency, board, commission or instrumentality of the state may be interested.” Id. § 8-6-109(b)(1); see State v. Potter, 61 S.W.3d 348, 351 (Tenn. Crim. App. 2001) (stating that the duties listed in § 8-6-109 are “the sole or exclusive authority” of the Attorney General).
The Attorney General may delegate his authority only if expressly permitted to do so by the State Constitution itself. See Tenn. Const. Art. II, §§ 12 (providing that “[t]he powers of the
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government shall be divided into three distinct departments: legislative, executive, and judicial,” and “[n]o person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted”); see also State v. Armstrong, 35 Tenn. 634, 65354 (1856) (explaining that the Tennessee State Constitution “declares (article 2, § 1) that ‘the powers of government shall be divided in the three distinct departments, the legislative, executive, and judicial.’ And sec. 2, that no one of these departments ‘shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.’ Thus each department is limited within its own appropriate sphere.”). Plaintiffs have pointed to no provision of the Tennessee Constitution that permits the delegation of the Attorney General’s authority to represent the State in litigation. Thus, the Attorney General cannot delegate his constitutional authority to administer and enforce the law to a separate branch of government. Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995) (citations omitted) (“The Tennessee Constitution forbids an encroachment by one department upon the powers or functions of another.”)
The Attorney General also cannot delegate his statutory authority. Any such delegation must be authorized by statute. State ex rel. Comm’r of Transp. v. Med. Bird Black Bear White Eagle, 63 S.W.3d 734, 772 (Tenn. Ct. App. 2001) (“The Attorney General is the chief executive officer of the Legal Department of state government. In this role, the Attorney General has both extensive statutory power and the broad common-law powers of the office except where these powers have been limited by statute.”) Tennessee statutes provide one exception to this rule  when the Attorney General decides “not to defend the constitutionality and validity of any law,” the Speakers of the Tennessee Senate and House of Representatives “acting jointly, may employ legal counsel to defend the constitutionality of such law.” Tenn. Code Ann. § 8-6-109(c). This case does not present that situation. In the present case, the Attorney General has declined to
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bring suit against the Federal Government rather than declining to defend the constitutionality of a law enacted by the General Assembly. See generally Rich v. Tenn. Bd. of Med. Exam’rs, 350 S.W.3d 919, 927 (Tenn. 2011) (“[H]ad the legislature intended to allow the additional exception asserted . . . it would have included specific language to that effect.”).
Plaintiffs argue that the State’s constitutional separation-of-powers principles are flexible enough to permit the General Assembly to litigate on the State’s behalf. However, Richardson v. Tennessee Board of Dentistry, a case relied on by Plaintiffs, affirms the exclusive authority of each department in its respective sphere. 913 S.W.2d at 452-55 (holding that administrative agencies created by the legislature may not encroach upon the province of the judicial department by determining a statute’s constitutionality (citing Tenn. Const. Art. II, §§ 1, 2)). The General Assembly, which is tasked “to make, alter, and repeal the law,” may not attempt to “administer[] and enforce[] the law” as well. Id. at 453.
Senate Joint Resolution 467 cannot amend the constitutional or statutory responsibilities conferred upon the Attorney General. In the Attorney General’s letter, the Attorney General delegated his litigation authority only “to the extent allowed by Tennessee law.” AG Letter at 4. He cited no constitutional provision allowing such delegation, and Tennessee Code Ann. § 8-6302, the sole statutory provision cited, is inapposite. That statute provides:
The attorney general and reporter, exercising discretion and with the concurrence of the head of the executive agency involved, may permit, by express written authorization, staff attorneys employed by the various departments, agencies, boards, commissions or instrumentalities of the state to appear and represent the state in a certain case or certain classes of cases under the direction and control of the attorney general and reporter. Tenn. Code Ann. § 8-6-302. This statute permits delegation of the Attorney General’s authority only to an executive agency and only under the Attorney General’s direction. Thus, the complaint fails to establish that any of the Plaintiffs have standing to bring this case.
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Ripeness Next, Defendants contend that Plaintiffs’ claims are not ripe for review. The Medicaid
Act allows the Secretary either to withhold federal funding entirely or in part when a state Medicaid program fails to comply with federal law. At the time of the filing of the complaint, Tennessee had not amended its Medicaid plan to deny coverage to refugees, and, therefore, HHS has not begun the administrative process to deny federal Medicaid funds to Tennessee. Accordingly, Defendants argue that whether Tennessee would suffer a loss of federal funds so great as to pass the point at which financial pressure becomes impermissible coercion depends on future events that may not occur. Plaintiffs have responded that the threat of enforcement of the Medicaid laws makes their claim ripe.
The ripeness doctrine arises “both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n.18 (1993). “The ripeness doctrine not only depends on the finding of a case and controversy and hence jurisdiction under Article III, but it also requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances.” Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir. 1985). The “basic rationale” of the ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . and also to protect [entities] from judicial interference until a[ ] . . . decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (citations omitted); see also Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 506 (1972) (stating that the ripeness doctrine asks
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whether “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment”).
Ripeness is present when “an injury that has not yet occurred is sufficiently likely to happen to justify judicial intervention” or “when the court would be in no better position to adjudicate the issues in the future than it is now.” Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010). A “future injury” will be deemed ripe if either “the injury is certainly impending” or “there is substantial risk that the harm will occur.” Susan B. Anthony List, 134 S. Ct. at 2341; see also Caprock Plains Fed. Bank Ass’n v. Farm Credit Admin., 843 F.2d 840, 845 (5th Cir. 1988) (concluding that “too many ifs” that render an injury a “mere potential[ity],” not just one or two that may render such a result into a substantial possibility or even a probability, will make a case unripe).
In evaluating a claim to determine whether it is ripe for judicial review, the court must consider “the fitness of the issues for judicial decision” and “the hardship of withholding court consideration.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003); see also Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002) (explaining that, to determine whether a claim is ripe, a court must consider (1) the likelihood that the injury alleged by the plaintiff will ever occur; (2) whether the factual record is sufficiently developed to allow for adjudication; and (3) the hardship to the parties from refusing consideration). For pre-enforcement challenges, a case is ordinarily ripe for review “only if the probability of the future event occurring is substantial and of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Nat’l Rifle Ass’n of America v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997). The ripeness doctrine acknowledges the problem inherent in adjudicating a dispute “anchored in future events that may not occur as anticipated, or at all.” Id.
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Here, Tennessee has not submitted a Medicaid plan amendment changing the provision of medical assistance to refugees. Nor have Plaintiffs alleged that Tennessee is currently withholding medical assistance from refugees. Because the State has taken no action to deny Medicaid benefits to refugees at the present time, the Federal Government has not considered the permissibility of any proposed changes in the State’s provision of medical assistance to refugees or rendered a final decision and, a fortiori, there has been no judicial review of such a final decision. 42 U.S.C. §§ 1316(a), 1396c.
Additionally, there is nothing indicating that a finding of non-compliance would lead to the withholding of all of the State’s federal Medicaid funding. CMS has discretion to withhold all or a limited portion of a State’s Medicaid funds when the State’s plan or the administration of the plan do not conform to federal requirements. 42 U.S.C. § 1396c; 42 C.F.R. § 430.35(d)(1). The injury that Plaintiffs claim, i.e., loss of all federal Medicaid funding, has not occurred and may never occur. Thus, Plaintiffs’ claim “depends on contingent future events that may not occur as anticipated, or indeed may not occur at all.” Warshak v. United States, 532 F.3d 521, 526 (6th Cir. 2008) (citation omitted).
Plaintiffs assert that they face significant hardship given the possibility that Defendants could withhold up to $7 billion in Medicaid funds from Tennessee each year. However, that concern is speculative. Plaintiffs have not established that they face significant hardship if this Court finds that it does not have jurisdiction in light of the fact that the State has taken no action to deny Medicaid benefits to refugees and, therefore, no administrative proceedings against the State or withholding of funds for noncompliance have begun. See Warshak, 532 F.3d at 53132 (explaining that “[h]ardship is difficult to maintain” when plaintiffs can avail themselves of “alternatives short of a pre-enforcement, facial attack on the enabling statute”); see also New York v. U.S. Dept. of Health and Human Servs., 2008 WL 5211000 at *14 (S.D.N.Y. Dec. 15,
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2008) (citing Reno, 509 U.S. at 58) (“requiring Plaintiffs to submit their plans through the plan amendment process before Plaintiffs challenge the process in court does not present the type of hardship or dilemma contemplated in Abbott Laboratories”); White v. Snider, 1994 WL 396415 at *3 (E.D. Pa. July 27, 1994) (emphasizing that the State had “not yet even received an adverse decision” and HHS had not disallowed federal funding or rejected an amendment to the State’s plan). See generally Magaw, 132 F.3d at 284 (citation omitted) (noting that the ripeness doctrine prevents courts “from entangling themselves in abstract disagreements”).
Plaintiffs also contend that hardship is shown by the fact that they have alleged a violation of the Tenth Amendment to the United States Constitution8 and that a declaratory judgment would resolve any uncertainty faced by Plaintiffs in deciding how to proceed with providing (or not providing) Medicaid benefits to refugees within the State. Defendants have correctly pointed out that the Declaratory Judgment Act does not allow Plaintiffs to bypass the ripeness requirement.
“It is clear that the declaratory judgment procedure is available in the federal courts only in cases involving actual controversies and may not be used to obtain an advisory opinion in a controversy not yet arisen.” Marek v. Navient Corp., 2017 WL 32943 at *1 (N.D. Ohio Jan. 4, 2017) (quoting United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 116 (1947)). “The requirements of standing, ripeness, and mootness guard against the issuing of advisory opinions.” Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232 (6th Cir. 1985); see also Briggs v. Ohio Elections Comm’n, 61 F.3d 487, 493 (6th Cir. 1995) (noting that a court is “obliged under Article III to limit its jurisdiction to ripe cases, to avoid issuing advisory opinions based upon hypothetical situations.”).
8 The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
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Plaintiffs have taken no steps to deny Medicaid or any other benefits to refugees, and, thus, their request for a declaratory judgment is the type of “premature adjudication” that the ripeness doctrine is meant to avoid. See Ky. Press Ass’n, Inc. v. Kentucky, 454 F.3d 505, 509 (6th Cir. 2006) (citations omitted) (“Ripeness is a justiciability doctrine designed to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements. Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all.”). Accordingly, the Court finds that the action is not ripe for judicial review. Preclusion
Next, Defendants contend that this Court’s review of Plaintiffs’ claim is precluded by the Medicaid Act because that Act provides an administrative process that culminates in appellate court review. In support of their argument, Defendants rely on Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), which provides that, when a statute provides for direct appellate review “of final agency actions, [courts] shall find that Congress has allocated initial review to an administrative body [when] such intent is ‘fairly discernible in the statutory scheme.”’ Id. at 207 (citation omitted). In that case, the Court held that a district court lacked authority to enjoin enforcement proceedings of the Mine Safety and Health Administration. The Court explained that the review structure established by the Mine Act, which provided for direct review of final agency action in the court of appeals, “demonstrate[d] that Congress intended to preclude challenges” — including constitutional challenges — prior to the completion of agency proceedings. Id. at 208, 215. Because the Mine Act provided a “detailed structure” for review of enforcement actions, even if the constitutional claim could not be addressed by the agency initially, it could be “meaningfully addressed in the Court of Appeals.” Id. at 207, 215.
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In the present case, as in Thunder Basin, the Medicaid Act sets out an administrative process pursuant to which the State may be heard regarding a withholding of payment for noncompliance. 42 U.S.C. §§ 1316, 1396c. If the State is aggrieved by the agency’s decision, the State may petition for review in a federal court of appeals. 42 U.S.C. § 1316(a)(3).
Plaintiffs do not dispute that a plaintiff asserting a non-constitutional claim challenging a provision of the Medicaid Act would be precluded from litigating in district court. Instead, they argue that their claim is not precluded because the question presented to this Court is one of constitutional interpretation, i.e., whether the Federal Government’s Medicaid requirements comply with the United States Constitution. According to Plaintiffs, § 1316 governs only the process for determining whether the State’s Medicaid plan conforms to the requirements for approval under the Medicaid Act.
In Elgin v. United States Department of the Treasury, 567 U.S. 1 (2012), the Supreme Court looked at the question of whether district courts may hear constitutional challenges to statutes before an administrative body has ruled in the matter and determined that they may not. The Elgin plaintiffs were federal employees who were terminated because they failed to register for the Selective Service. Id. at 6. They filed suit challenging the constitutionality of the statute barring anyone failing to register for the Service from employment in an Executive Agency. Id. at 7. The District Court concluded that it had jurisdiction to hear the constitutional claims, even though the Civil Service Reform Act (“CSRA”) provided an administrative process to challenge adverse employment actions, including an appeal to the Court of Appeals for the Federal Circuit, and the plaintiffs had not availed themselves of that process. Id. at 78. The Supreme Court stated the issue as whether “the CSRA provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.” Id. at 5. The Court held that even employees bringing constitutional
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challenges to federal statutes must do so within the judicial review framework established by that particular Act. Id. at 2123. In making its decision, the Court looked at its decision in Thunder Basin and determined “[l]ike the statute in Thunder Basin, the CSRA does not foreclose all judicial review of petitioners’ constitutional claims, but merely directs that judicial review shall occur in the Federal Circuit.” Id. at 10. Likewise, the Medicaid Act provides for judicial review in the United States Court of Appeals for the circuit in which the state is located.
Because the Medicaid Act precludes review of Plaintiffs’ claim in this Court, the Court lacks subject matter jurisdiction over Plaintiffs’ claim that it is being coerced to provide Medicaid benefits to refugees.
In summary, the motion to dismiss for lack of subject matter jurisdiction is granted on the grounds of lack of standing and ripeness on Plaintiffs’ claim that the Federal Government coerces it to expend significant sums of money to support the federal refugee program, including but not limited to the Medicaid program. The motion to dismiss for lack of subject matter jurisdiction on the ground of preclusion is granted only as to any expenditures under the Medicaid program.
Motion to Dismiss for Failure to State a Claim In deciding a Rule 12(b)(6) motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, draw all reasonable inferences in favor of the plaintiff, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Determining whether a complaint states
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a plausible claim for relief will [ultimately] . . . be a context-specific task that requires th[is
Court] to draw on its judicial experience and common sense.” Id. at 679.
Plaintiffs contend that provisions of the Welfare Reform Act of 1996 and the Refugee
Act of 1980 exceed Congress’s authority under the Spending Clause and violate the Tenth
Amendment by compelling Tennessee to subsidize the Refugee Resettlement Program.
According to Plaintiffs, federal requirements that Plaintiffs expend state funds to cover refugees
through Medicaid and other programs interfere with Plaintiffs’ right to appropriate state funds as
they see fit. They argue that the Federal Government’s ability to withhold Medicaid funding if
the State refuses to expend funds to support refugee medical assistance is unconstitutional.
Defendants have responded that Tennessee is not compelled to subsidize the Refugee
Resettlement Program by financial inducement or otherwise and that the Refugee Act merely
authorizes federally funded assistance and social services to refugees. They also assert that
states have no authority under the Tenth Amendment to exclude refugees or deny them benefits
because this would contravene national immigration policy as embodied by the Welfare Reform
Act.
The Supreme Court discussed the difficulty of “ascertaining the constitutional line
between federal and state power” in New York v. United States, 505 U.S. 144 (1992).
At least as far back as Martin v. Hunter’s Lessee, 1 Wheat. 304, 324, 4 L. Ed. 97 (1816), the Court has resolved questions “of great importance and delicacy” in determining whether particular sovereign powers have been granted by the Constitution to the Federal Government or have been retained by the States.
These questions can be viewed in either of two ways. In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution. See, e.g., Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed.2d 686 (1971); McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579 (1819). In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment. See, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed.2d 1016 (1985); Lane County
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v. Oregon, 7 Wall. 71, 19 L. Ed. 101 (1869). In a case like these, involving the division of authority between federal and state governments, the two inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress. See United States v. Oregon, 366 U.S. 643, 649, 81 S. Ct. 1278, 1281, 6 L. Ed.2d 575 (1961); Case v. Bowles, 327 U.S. 92, 102, 66 S. Ct. 438, 443, 90 L. Ed. 552 (1946); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534, 61 S. Ct. 1050, 1063, 85 L. Ed. 1487 (1941). New York, 505 U.S. at 15556. Thus, “[t]he States unquestionably do retai[n] a significant
measure of sovereign authority . . . to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.” Garcia, 469 U.S. at 549. However, “the Supremacy Clause gives the Federal Government ‘a decided advantage in th[e] delicate balance’ the Constitution strikes between state and federal power.” New York, 505 U.S. at 159 (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
Article I of the United States Constitution contains the Spending Clause, pursuant to which Congress possesses the “Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. Art. I, § 8, cl. 1. As noted by Defendants, Congress has latitude under the Spending Clause “to further broad policy objectives by conditioning the receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” South Dakota v. Dole, 483 U.S. 203, 20607 (1987) (citation omitted). This includes the power to “fix the
terms under which it disburses federal money to the States.” Suter v. Artist M, 503 U.S. 347, 356 (1992) (citing Pennhurst St. Sch. & Hosp. v. Halderman, 451 U.S. 1, 15 (1981)); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 57677 (explaining that Congress may place
conditions on states’ receipt of federal funds “to create incentives for States to act in accordance with federal policies,” without offense to the Tenth Amendment); United States v. Am. Library
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Ass’n, Inc., 539 U.S. 194, 203 (2003) (citation omitted) (“Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives.”). The choice “between accepting the money and the conditions, or declining both” may be a “hard one,” Kansas v. United States, 214 F.3d 1196, 120304 (10th Cir. 2000), but states may resort to “the simple expedient of not yielding to federal blandishments when they do not want to embrace the federal policies as their own.” Nat’l Fed, 132 S. Ct. at 2603. See also Pennhurst St. Sch. & Hosp., 451 U.S. at 17 (likening Spending Clause legislation to a “contract” whereby “in return for federal funds, the States agree to comply with federally imposed conditions”).
In upholding statutes in which Congress has attached strings to the receipt of federal grants, the Supreme Court has recognized limitations to Congress’s power under the Spending Clause. They include: (1) the exercise of the spending power must be in pursuit of the general welfare; (2) conditions on the receipt of federal funds must be unambiguous; (3) conditions must be related to the federal interest in a particular national project or program; and (4) the legislation cannot induce the states to engage in activities that would be unconstitutional. Dole, 483 U.S. at 207–08 (permitting federal law conditioning receipt of highway construction funds on states’ raising minimum drinking age). Additionally, “the financial inducement offered” may not be “so coercive as to pass the point at which ‘pressure turns into compulsion.’” Id. at 211 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937) (equating impermissible “coercion” with “destroying or impairing the autonomy of the states”).
In the present case, Plaintiffs seek a declaration that, due to Tennessee’s withdrawal from the Refugee Resettlement Program, the State should no longer be required to accept refugees for resettlement and/or be forced to expend State funds to cover the cost of the health-care services the refugees receive under Medicaid. According to Plaintiffs, the Federal Government’s implementation of the Refugee Act, 8 U.S.C. § 1522, and the Welfare Reform Act, 8 U.S.C. §
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1612, impermissibly intrudes on Tennessee’s sovereignty. Plaintiffs contend that the Federal Government’s actions violate the Tenth Amendment by “commandeering” State funds and “coercing” the State to expend funds to provide benefits to refugees. (Compl. ¶¶ 1, 18, 23.) Defendants have responded that the states have no reservoir of authority under the Tenth Amendment to exclude refugees or to deny refugees Medicaid benefits in contravention of the national immigration policy embodied by the Welfare Reform Act.
It is undisputed that “[t]he authority to control immigration … is vested solely in the Federal government” by the Naturalization Clause of Article I of the United States Constitution. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 416 (1948). Courts “have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders.” Toll, 458 U.S. at 10 (citing Mathews v. Diaz, 426 U.S. 67 (1976); Graham, 403 U.S. at 377380; Takahashi, 334 U.S. at 41820; Hines v. Davidowitz, 312 U.S. 52, 62 - 68 (1941); Truax v. Raich, 239 U.S. 33, 42 (1915)). “The Government’s broad authority over immigration was first announced more than one-hundred years ago in The Chinese Exclusion Case, 130 U.S. 581, 9 S. Ct. 623, 32 L. Ed. 1068 (1889).” Detroit Free Press v. Ashcroft, 303 F.3d 681, 685 (6th Cir. 2002); see also Arizona v. United States, 567 U.S. 387, 394 (2012) (citing Toll, 458 U.S. at 10) (“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.”); Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver no conceivable subject is the legislative power of Congress more complete.”).
The Federal Government not only has the authority to establish the conditions for aliens’ admission to the United States but also “extensive powers to regulate . . . the conditions under which [they] remain . . . .” Korab, 797 F.3d at 580. “When the national government by … statute has established rules and regulations touching the rights, privileges, obligations, or burdens of aliens as such . . . “[n]o state can add to or take from [its] force and effect.” Hines,
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312 U.S. at 6263. Accordingly, the states “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.” Toll, 458 U.S. at 11 (citation omitted).
In Graham v. Richardson, the Supreme Court was faced with the issue of whether a state could favor United States citizens over aliens in the distribution of welfare benefits.9 In holding that the state statutes at issue denying welfare benefits to resident aliens who had not resided in the United States for a specific number of years violated the Equal Protection Clause, the Court explained that “justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces . . . . [A]liens may live within a state for many years, work in the state and contribute to the economic growth of the state.” 10 Id. at 37680. The Court concluded that the state statutes were “constitutionally impermissible” because they conflicted with federal policy, declared by Congress, regarding the admission of aliens and their right to the full and equal benefit of state laws. In so doing, the states “encroached upon exclusive federal power.” Id. at 376-80. “[When] the federal government, in the exercise of its superior authority in [the immigration] field, has enacted a complete scheme of regulation … states cannot … conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Id. at 378 (citation omitted).
The Graham Court pointed out that, “[u]nder Art. I, § 8, cl. 4, of the Constitution, Congress’ power is to ‘establish an uniform Rule of Naturalization,’” and a “congressional 9 Graham involved a Pennsylvania law that denied public assistance to legal residents and an Arizona law that denied federally subsidized benefits to legal residents who had not lived within the United States for fifteen years. 10 The Graham Court noted that Takahashi v. Fish & Game Commission established the equalprotection rights of aliens. Id. at 382.
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enactment construed so as to permit state legislatures to adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs would appear to contravene this explicit constitutional requirement of uniformity.” Id.; see also Mathews, 426 U.S. at 81 (holding that Congress’s broad power over naturalization and immigration encompasses the power to condition an alien’s eligibility for participation in a federal medical insurance program). A state “has no power to interfere,” Nyquist v. Mauclet, 432 U.S. 1, 10 (1977), with the exercise of Congress’s authority to “establish[ ] rules and regulations touching the rights [and] privileges …of aliens.” Hines, 312 U.S. at 6263. It is a “plenary federal power” in which the “States do not share.” Bruns, 750 F.3d at 66 (citations omitted); see also Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (noting that the Tenth Amendment’s reservation of state power does not supersede duties “imposed upon the States by the Constitution itself”).
After Graham, the Supreme Court “has repeatedly struck down an array of state statutes denying [lawfully present] aliens equal access to licenses, employment, or state benefits,” Korab, 797 F.3d at 578 (citations omitted), “[i]n each case . . . reasserting its commitment to [Graham’s] holding.” Dandamudi v. Tisch, 686 F.3d 66, 73 (2d Cir. 2012) (holding that a statute’s requirement that an applicant for a pharmacist’s license be either a United States citizen or an alien lawfully admitted for permanent residence in the United States violated the Equal Protection and Supremacy Clauses of the United States Constitution).
Congress has declared immigrant self-sufficiency to be an element of national immigration policy, 8 U.S.C. § 1601(1), (2), and to promote that goal it exercised its authority under the Naturalization Clause to enact the Welfare Reform Act which governs the extent to which aliens may have access to the public benefits that are available to United States citizens. See Korab, 797 F.3d at 580. The Welfare Reform Act includes the directive that participating states must furnish Medicaid benefits to refugees for the first seven years following their arrival
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in this country. 8 U.S.C. §§ 1612(b)(1), (2)(A)(i), 1613(b)(1). Thus, instead of “commandeering” state funds to support health-care coverage for refugees, the Welfare Reform Act permits Tennessee to reduce expenditures that it would otherwise be required to make.
A state’s obligation under the Medicaid Act to cover lawfully present aliens predates and arises independently of the Refugee Act. See 45 C.F.R. § 248.50 (1973). If the Refugee Resettlement Program were repealed, states participating in the Medicaid program would still be obligated to provide coverage to refugees to the extent required by the Welfare Reform Act. And, as pointed out by Defendants, under Graham, the State would be compelled to continue covering health-care services for refugees for so long as they continued to meet all other eligibility requirements. “A duty imposed on states by the Constitution can hardly be said to violate the Tenth Amendment’s reservation of unenumerated powers to the states.” Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997) (citing Puerto Rico v. Branstad). Accordingly, Plaintiffs have not alleged a cognizable claim of violation of the Tenth Amendment or the Spending Clause.
To the extent that Plaintiffs have attempted to rely on County of Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1201 (N.D. Cal. 2017), in support of their argument, this case is inapposite.11 In that case, the court looked at President Donald J. Trump’s Executive Order which threatened to deny federal money to and take enforcement action against an undefined group of so-called “sanctuary jurisdictions.” The court issued a permanent injunction barring enforcement of the Executive Order on the ground that it violated numerous constitutional safeguards, including separation of powers. In the order, the court noted that the “Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot
11 As mentioned in footnote one, Plaintiffs submitted this case as “supplemental authority” postbriefing. (ECF No. 44.) However, Plaintiffs have made no arguments or analysis concerning the case as to how it supports their position.
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constitutionally place new conditions on federal funds.” Id. at 1202. The present case involves a Congressional act as opposed to an executive order, and no separation of powers issue is implicated.
Plaintiffs also attempt to rely on Printz v. United States, 521 U.S. 898 (1997), which considered the constitutionality of the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922, a federal law requiring state and local law enforcement officers to conduct background checks and perform other tasks related to gun sales. The Court held that the Act violated the residual sovereignty of the states by imposing an unconditional legal obligation on state law enforcement officials to conduct background checks on prospective handgun purchasers. Id. at 93334. “The Federal Government . . . may not compel the States to enact or administer a federal regulatory program.” Id. at 933 (citation omitted); see also Cutter v. Wilkinson, 423 F.3d 579, 589 (6th Cir. 2005) (“Together New York [v. United States, 505 U.S. 144 (1992)] and Printz stand for the unexceptionable proposition that Congress cannot force the states to enact or administer a federal regulatory scheme.”). However, states can enter into voluntary contracts with the federal government whereby they agree to legislate according to federal terms in exchange for some federal benefit or forbearance, New York, 505 U.S. at 16667, as in the present case.
Finally, Plaintiffs contend that the threatened loss of federal Medicaid funding to coerce support of the federal refugee program is not constitutional under National Federation of Independent Business v. Sebelius (“NFIB”). In NFIB, the Supreme Court examined the constitutionality of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (the “ACA”). As originally drafted, the ACA provided substantial federal funds to states to expand their Medicaid programs, but, if states chose not to accept the additional funds, they would not only forgo those funds but lose all existing federal funds as well. In a
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plurality opinion,12 the Court found that this provision of the ACA was not a valid exercise of
Congress’s spending power because it would coerce states to either accept the expansion or risk losing existing Medicaid funding.13 567 U.S. at 671678.
In reaching this decision, the plurality emphasized that decisions of the Court had
“repeatedly characterized . . . Spending Clause legislation as ‘much in the nature of a contract.’”
Id. at 576–776 (quoting Barnes v. Gorman, 536 U.S. 181, 186 (2002)). As such, states cannot
freely accept funds when they are coerced into doing so by lopsided terms of the grant. Id. at
577. After a discussion of Federalism principles, the plurality stated:
We have upheld Congress’s authority to condition the receipt of funds on the States’ complying with restrictions on the use of those funds, because that is the means by which Congress ensures that the funds are spent according to its view of the “general Welfare.” Conditions that do not here govern the use of the funds, however, cannot be justified on that basis.
Id. at 585.
While Congress has “authority to condition the receipt of funds on the States’ complying
with restrictions on the use of those funds,” id., the plurality viewed the ACA as tying traditional
Medicaid grants, not to compliance with restrictions on their use, but to implementing the
expansion and, therefore, “pressur[ed] the States to accept policy changes.” Id. at 580. The
threatened loss of all Medicaid grants “pass[ed] the point at which pressure turns into
compulsion,” leaving states “with no real option but to acquiesce” in the expansion. Id. at 582.
The plurality emphasized that the expansion could not be considered merely an adjustment to the
12 Seven Justices concluded that taking away existing Medicaid funding from states which declined to sign up for the new expanded Medicaid program was unconstitutional but were unable to agree on a single rationale. Chief Justice John Roberts, in a plurality opinion joined by Justice Stephen Breyer and Justice Elena Kagan, offered one rationale for that holding. A joint dissent by Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas, and Justice Samuel Alito offered another. 13 The Court’s decision on the other portions of the ACA that were challenged in NFIB is not pertinent to this case.
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existing program that Congress was entitled to make as it evolved. That is, the conditions the
ACA imposed on the states did not “govern the use of” the new funds granted to the states but,
instead, took “the form of threats to terminate other significant independent grants” already in
existence. Id. at 580. Thus, the expansion was “in reality a new program,” a transformation of
Medicaid from a health-care program for the indigent into a health-insurance program for a
significant portion of the non-elderly population  a change that the states could not have
anticipated. Id. at 582-83. Chief Justice Roberts explained that the expansion
accomplishe[d] a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children.... Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the [ACA], Medicaid ... is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage. Id.14
In contrast, the refugee-coverage provision of the Welfare Reform Act does not condition
the states’ receipt of federal Medicaid funds on their implementation of an entirely new program.
Graham v. Richardson announced the states’ obligation to extend Medicaid coverage to lawfully
14 The plurality found a Spending Clause violation because it determined that the Medicaid program expansion was a new program, participation in which was a condition for continued receipt of pre-ACA Medicaid funds and because the loss of pre-ACA Medicaid funds would have been so consequential to the states that states had no real option to refuse. Thus, the expansion placed a condition on the receipt of funds that did not govern the use of those funds, and the condition was unduly coercive. While the joint dissent would have held the expansion provision unconstitutional based on the plurality’s analysis, they took the coercion analysis a step further and would have invalidated the expansion based on a finding of coercion alone. Because the plurality’s rationale was narrower, it is considered to be the holding of the Court. See Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted) (deciding that, when a majority of the Supreme Court agrees on a result but “no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds’”).
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present aliens in 1971; the Secretary codified that obligation by regulation in 1973; and Congress ratified the Secretary’s decision when it passed the Omnibus Budget Reconciliation Act of 1986, ten years before the Welfare Reform Act. For decades Tennessee has accepted federal Medicaid funds based on the understanding that it must cover lawfully present aliens under its Medicaid program. The refugee coverage provision narrowed rather than expanded that requirement by placing a time limit on the states’ obligation to expend state funds on health-care services for refugees.
Plaintiffs contend that, despite its longevity, changed conditions and modifications to the Refugee Resettlement Program have transformed it into a new program that Tennessee could not have foreseen. According to Plaintiffs, Tennessee’s participation in the Medicaid program predates the advent of the refugee resettlement program in 1980 as well as the elimination of federal funding for the program in 1991. They argue that changes in the refugee resettlement program have resulted in a radically different program than originally intended. Plaintiffs claim to have been surprised by the fact that the Federal Government did not honor Tennessee’s decision to withdraw from the program in 2007 but instead continued it by using federal contractors while increasing the overall number of refugees. They characterize these changes as ones Tennessee could not have anticipated and that caused a “shift in kind, not merely degree” as was found to be unconstitutional in NFIB.
Despite Plaintiffs’ arguments, this Court finds that the requirement of providing state funding for refugees in exchange for federal Medicaid funds cannot be considered “new” as was the ACA expansion provision in NFIB. In NFIB, “the condition at issue was ‘new’ in two senses of the word: [the condition] had been recently enacted at the time of the litigation, and [the condition] imposed additional requirements with which States had to comply to continue receiving preexisting federal funding.” Miss. Comm’n on Envtl. Quality v. E.P.A., 790 F.3d 138,
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179 (D.C. Cir. 2015). As explained above, the requirement to provide Medicaid to refugees is long standing rather than being recently enacted at the time of this litigation. Additionally, no additional requirements have been imposed on Tennessee in order for it to receive preexisting federal funding.
Moreover, there is no federal requirement that a state participate in the refugee program in order for that state to be required to provide benefits to refugees. The Federal Government’s practice of relying on private non-profit organizations to administer refugee resettlement in states that elect to discontinue participation in the refugee program under “Wilson/Fish” programs was established by at least 1999.
Plaintiffs cannot now claim to be surprised by the cessation of reimbursement for the cost of providing Medicaid coverage to refugees since Congress ceased to appropriate funds for that purpose in 1991, a fact acknowledged in the complaint.15 Despite the lack of reimbursement, the State has continued to participate in the Medicaid program.
Finally, Plaintiffs maintain that the growing number of refugees admitted in recent years has increased the cost of refugee health-care to the states and was not anticipated at the time Tennessee entered into the program. To the contrary, as pointed out by Defendants, periodic international humanitarian crises accompanied by refugees seeking to resettle in the United States has always been foreseeable. Under the Refugee Act of 1980, “the number of refugees who may be admitted” each year is not fixed or determined according to a prescribed formula, but “shall be such number as the President determines, before the beginning of the fiscal year … is justified by humanitarian concerns or is otherwise in the national interest.” 8 U.S.C. § 1157(a)(2). The President may also admit additional numbers of refugees as needed to meet
15 “Federal funds initially supported the federal government’s refugee resettlement program, but eventually federal reimbursements to the states were reduced and, by 1991, eliminated entirely. States thereby became responsible for costs of the program.” (Compl. ¶ 27).
41

Case 1:17-cv-01040-STA-egb Document 45 Filed 03/19/18 Page 42 of 43 PageID 1160
“unforeseen emergency refugee situation[s].” Id. § 1157(b). Given the history of recurrent refugee crises and the purpose of the Refugee Act, variation in the numbers of annual refugee admissions are to be expected.
None of the events described by Plaintiffs represents a departure from the understanding pursuant to which Tennessee has accepted Federal Medicaid funds for over forty years  that it must cover lawfully present aliens, including refugees, under its Medicaid program. Therefore, Plaintiffs have not shown that the requirement that Tennessee provide Medicaid coverage for refugees for seven years is a new program within the ambit of NFIB.
Plaintiffs also contend that the amount of federal Medicaid funds Tennessee might lose if they do not comply with the requirement to provide Medicaid to refugees is so large that they have no choice but to continue with the program. The NFIB Court looked at the amount of funding at stake for the states in deciding that the expanded Medicaid program under the ACA was unconstitutionally coercive. Chief Justice Roberts noted that “the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’  it is a gun to the head,” NFIB, U.S. at 581; however, the Court did not specify a point at which financial inducement becomes coercion. Instead, the Court commented that Steward Machine Co. did not attempt to fix a line at which persuasion gives way to coercion, and the NFIB Court declined to do so as well. “It is enough for today that wherever that line may be, this statute is surely beyond it.” Id. at 585.
While Tennessee could potentially lose all of its federal Medicaid funds, the Federal Government could withhold only part of the State’s federal Medicaid funding.16 At this juncture,
16 The Complaint alleges that “[f]rom 2008, when Tennessee withdrew from the refugee resettlement program, until 2016, the federal contribution to Medicaid ranged from over $4 billion ($4,566,651,300.00) to nearly $7 billion and has represented 17% to 21% of Tennessee’s budget.” (Compl. ¶ 35.)
42

Case 1:17-cv-01040-STA-egb Document 45 Filed 03/19/18 Page 43 of 43 PageID 1161
this Court cannot ascertain what amount the State is faced with losing. Although inherent in Medicaid’s provisions for the process of amending a state’s Medicaid plan is the possibility that the Federal Government might deny a proposed amendment and withhold all or part of the funding, there is no allegation the Federal Government has made such a threat to Tennessee. This case does not present the situation in NFIB in which, in exchange for new conditions to a federal program, Congress not only offered states additional money but also threatened to stop providing the funding it currently distributed for that program if those conditions were not accepted.
Moreover, the amount of the loss of funding is only one element of the coercion test adopted by the NFIB plurality. The State must also show that Congress has created a new condition that is different from the original program Congress is purporting to modify and is using that program’s funding as leverage to force the states to accept the new condition. NFIB, 567 U.S. at 583-84. As discussed above, Plaintiffs have failed to make this showing and, therefore, have failed to state a claim upon which relief may be granted.
For these reasons, Defendants’ motion to dismiss is GRANTED, and judgment will be entered in favor of Defendants.
IT IS SO ORDERED. s/ S. Thomas Anderson S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE Date: March 19, 2018
43

 </s> Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F1iledF0i7le/d2:40/179/24P/2a0g1e91 ofP2a9ge:P1ageID 1180(1 of 29)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: July 24, 2019
Mr. John J. Bursch Bursch Law 9339 Cherry Valley, S.E., Suite 78 Caledonia, MI 49316
Ms. Samantha Lee Chaifetz Ms. Alisa B. Klein Mr. Mark B. Stern U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Room 7248 Washington, DC 20530
Ms. Sarah Lynne Grusin National Health Law Program North Carolina 200 N. Greensboro Street, Suite D-13 Carrboro, NC 27510
Mr. Richard Thompson Thomas More Law Center P.O. Box 393 Ann Arbor, MI 48106
Mr. Cody Wofsy ACLU Immigrants' Rights Project, 39 Drumm Street San Francisco, CA 94111
Re: Case No. 18-5478, State of Tennessee, et al v. U.S. Department of State, et al Originating Case No. : 1:17-cv-01040
Dear Counsel,
The court today announced its decision in the above-styled case.

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F1iledF0i7le/d2:40/179/24P/2a0g1e92 ofP2a9ge:P2ageID 1181(2 of 29)

Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. Thomas M. Gould Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e93 ofP2a9ge:P1ageID 1182(3 of 29)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0164p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

STATE OF TENNESSEE, by and through the Tennessee ┐

General Assembly, et al.,

│

Plaintiffs-Appellants, │

│

>

v.

│

│

│

UNITED STATES DEPARTMENT OF STATE, et al.,

│

Defendants-Appellees. │

┘

No. 18-5478

Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 1:17-cv-01040—S. Thomas Anderson, District Judge.

Argued: March 19, 2019

Decided and Filed: July 24, 2019 Before: COLE, Chief Judge; and BOGGS, Circuit Judge.*

_________________

COUNSEL

ARGUED: John J. Bursch, BURSCH LAW PLLC, Caledonia, Michigan, for Appellants. Samantha L. Chaifetz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Richard Thompson, B. Tyler Brooks, Kate Oliveri, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for Appellants. Samantha L. Chaifetz, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Sarah Grusin, NATIONAL HEALTH LAW PROGRAM, Carrboro, North Carolina, Cody Wofsy, AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT, San Francisco, California, for Amici Curiae.

*After oral argument, Judge Julia Smith Gibbons was unavailable to participate in the panel’s decision. Chief Judge Cole and Judge Boggs act as a quorum pursuant to 28 U.S.C. § 46(d).

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e94 ofP2a9ge:P2ageID 1183(4 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 2

_________________
OPINION _________________
BOGGS, Circuit Judge. This case presents the question of whether the Tennessee General Assembly (“General Assembly”) has standing to file suit on its own behalf, as well as on behalf of the State of Tennessee. The General Assembly alleged that the federal government violated the Spending Clause and the Tenth Amendment to the United States Constitution through enacting and implementing certain statutes that require states to provide Medicaid coverage to eligible refugees. The district court dismissed the General Assembly’s complaint for lack of standing. Tennessee v. U.S. Dep’t of State, 329 F. Supp. 3d 597, 616–17 (W.D. Tenn. 2018). Because the General Assembly has not alleged an injury that gives it standing, and because the General Assembly has not established that it has the authority to bring suit on behalf of Tennessee, we affirm the district court’s judgment.
STATUTORY BACKGROUND
Before turning to the parties’ arguments, we briefly discuss the statutory schemes that are relevant to this case. In 1980, Congress amended the Immigration and Nationality Act by passing the Refugee Act, Pub. L. No. 96-121, 94 Stat. 102 (1980) (codified in scattered sections of 8 U.S.C.). The Refugee Act created the Office of Refugee Resettlement (“ORR”) within the Department of Health and Human Services (“HHS”).1 8 U.S.C. § 1521(a). ORR administers the Refugee Resettlement Program. See id. (b). ORR consults with state and local governments and private nonprofit agencies concerning “the sponsorship process and the intended distribution among the States and localities before their placement in those States and localities.” 8 U.S.C. § 1522(a)(2)(A). The parties do not dispute that states cannot prevent the federal government from settling refugees within their borders. See Tennessee, 329 F. Supp. 3d at 607 (citing H.R.

1The Bureau of Population, Refugees, and Migration within the United States Department of State determines whether refugees are eligible for resettlement within the United States. Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 724–25 (S.D. Ind. 2016). This process can take eighteen to twenty-four months. Id. at 725.

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e95 ofP2a9ge:P3ageID 1184(5 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 3

Rep. No. 132, at 19 (1985)); see also Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 904 (7th Cir. 2016).
The Refugee Resettlement Program assists refugees in achieving economic selfsufficiency in the United States through federal grants to provide employment training, Englishlanguage education, and other skill development. 8 U.S.C. § 1522(a)(1)(A); Exodus Refugee Immigration, 838 F.3d at 903; 45 C.F.R. § 400.11. States may choose to administer this program. To participate, a state must submit a proposal for ORR’s approval, describing how the state will “coordinate cash and medical assistance and other services to promote refugee resettlement and economic self-sufficiency.” Tennessee, 329 F. Supp. 3d at 607; 8 U.S.C. § 1522(a)(6)(A)–(C); 45 C.F.R. § 400.4. If a state chooses not to participate, or withdraws from participation, then the state does not receive or administer the grant funding. 45 C.F.R. § 400.301. ORR may then “authorize a replacement designee or designees to administer the provision of assistance and services, as appropriate, to refugees in that State.” Id. (c); see also 8 U.S.C. § 1152(c)(1)(A), (e)(1); Exodus Refugee Immigration, 838 F.3d at 905; 60 Fed. Reg. 33584, 33588 (June 28, 1995). ORR funds thirteen such programs in twelve states. Tennessee, 329 F. Supp. 3d at 608.
The Refugee Act authorizes, but does not require, ORR to reimburse states, subject to available appropriations, “for 100 per centum of the cash assistance and medical assistance provided to any refugee” during the first three years of the refugee’s residence in the United States. 8 U.S.C. § 1522(e)(1); see also Tennessee, 329 F. Supp. 3d at 607. “[B]y the early 1990s, ORR no longer reimbursed the states for the full cost of providing cash and medical assistance to refugees due to an insufficiency of funds appropriated for that purpose.” Tennessee, 329 F. Supp. 3d at 607. ORR amended the program regulations in light of the “steady decline in Federal refugee funding for the State share of . . . Medicaid . . . due to insufficient appropriated funds.” 60 Fed. Reg. 33584, 33588 (June 28, 1995).
Medicaid is a “cooperative federal-state public assistance program that makes federal funds available to states electing to furnish medical services to certain impoverished individuals.” Mowbray v. Koslowski, 914 F.2d 593, 595 (4th Cir. 1990). Medicaid assists states in providing medical care to “pregnant women, children, needy families, the blind, the elderly,

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e96 ofP2a9ge:P4ageID 1185(6 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 4

and the disabled . . . .” Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 541 (2012). Participation in Medicaid is voluntary, but to receive federal funding, states must have an approved state Medicaid plan satisfying federal criteria that establish who is eligible for care, the services provided, and the cost of services. Id. at 541–42; see also 42 U.S.C. § 1396a(10); 42 C.F.R. § 430.10. Tennessee has participated in Medicaid since 1968. Tennessee, 329 F. Supp. 3d at 605.
A state must submit its Medicaid plan, or any proposed amendments, to the Centers for Medicare & Medicaid Services (“CMS”) for approval. 42 C.F.R. § 430.12. Once the plan is approved, the state receives reimbursement from the federal government for a percentage of the costs of providing care to eligible individuals: the “Federal Medical Assistance Percentage” (“FMAP”). West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 284 (4th Cir. 2002); see also 42 U.S.C. § 1396d(b). If a state plan is not in compliance with the Medicaid Act’s requirements, “after reasonable notice and opportunity for hearing,” HHS may withhold the state’s FMAP or limit the FMAP to the parts of the state plan that are not affected by noncompliance. 42 U.S.C. § 1396c. The Medicaid Act provides for a system of administrative and judicial review for HHS’s decisions concerning state plans and a determination to reduce or withhold a state’s FMAP.2 See 42 U.S.C. § 1316. Medicaid spending accounts for a substantial portion of the average state’s budget, and the FMAP covers “50 to 83 percent of those costs.” NFIB, 567 U.S. at 581. In recent years, Tennessee’s annual FMAP has ranged from four to seven billion dollars, which represents 17 to 21% of the state’s total budget for all purposes.
The original Medicaid Act “was . . . silent on the availability of Medicaid to aliens.” Lewis v. Thompson, 252 F.3d 567, 571 (2d Cir. 2001). In 1971, the Supreme Court held in
2The General Assembly argues that it faces the potential consequence of a loss of its FMAP. CMS may withhold payments to a state only after providing “reasonable notice and opportunity for a hearing,” if CMS finds that the plan is no longer in compliance or that the administration of the plan fails to substantially comply with the Medicaid Act. 42 U.S.C. § 1396c; 42 C.F.R. § 430.35(a). A hearing is “generally not called until a reasonable effort has been made to resolve the issues through conferences and discussions.” 42 C.F.R. § 430.35(a). The Code of Federal Regulations identifies the procedure for a hearing. See 42 C.F.R. §§ 430.60–104. CMS’s decision is final agency action. 42 C.F.R. § 430.102(c). The decision must specify whether a state’s FMAP will be withheld entirely or in part, as well as the effective date. 42 C.F.R. 430.104(a). CMS may still, however, consult with the parties on the question of further payments. Id. (b). Federal funds cannot be withheld earlier than the date of the decision, and no later than “the first day of the next calendar quarter.” Id. (c). CMS’s final determinations are subject to judicial review by the United States Court of Appeals for the circuit in which the state is located. 42 U.S.C. § 1316(a)(3).

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e97 ofP2a9ge:P5ageID 1186(7 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 5

Graham v. Richardson, 403 U.S. 365, 376 (1971), that states violated the Equal Protection Clause of the Fourteenth Amendment by denying public assistance to noncitizens on that basis, or because the noncitizen had not resided in the United States for a certain number of years. Following Graham, HHS proposed a rule to implement the decision that was also consistent with recent amendments to the Social Security Act that denied Social Security benefits to noncitizens. See 38 Fed. Reg. 16910, 16910–11 (June 27, 1973); see also Lewis, 252 F.3d at 571. The rule, codified at the time at 45 C.F.R. § 248.50 (1974), required states that participated in Medicaid to provide benefits to eligible noncitizens “lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law[.]” 38 Fed. Reg. 30259, 30259 (Nov. 2, 1973). A noncitizen’s eligibility for Medicaid depended on whether the noncitizen fit the criteria for coverage in the Medicaid Act.
In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2015 (1996). The Act restricts the availability of public benefits for noncitizens to promote self-sufficiency as part of the United States’ national immigration policy. See 8 U.S.C. § 1601(5)–(6). To that end, the Act provided that “an alien who is not a qualified alien . . . is not eligible for any Federal public benefit[.]” 8 U.S.C. § 1611(a); see also Bruns v. Mayhew, 750 F.3d 61, 63–64 (1st Cir. 2014). “Qualified alien” is defined at 8 U.S.C. § 1641(b)–(c), and includes, inter alia, “a refugee who is admitted to the United States under section 207 of [the Immigration and Nationality] Act.” Id. (b)(3). Most qualified aliens are subject to additional restrictions on federal program participation. See 8 U.S.C. §§ 1612(a)(1), 1613(a). Five years after entry into the United States, qualified aliens may be able to participate in certain federal programs, if they are eligible, including Medicaid. Tennessee, 329 F. Supp. 3d at 606. Congress identified some classes of qualified aliens,3 including refugees, who may participate in identified federal programs, including Medicaid, immediately upon admission to the United States, until seven years after the refugee was admitted to the United States. 8 U.S.C. § 1612(a)(2)(A)(i).

3See 8 U.S.C. § 1612(a)(2)(A)(i)–(v), (B)–(D) (identifying qualified aliens, including refugees, who may participate in certain federal programs).

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e98 ofP2a9ge:P6ageID 1187(8 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 6

Therefore, if a state participates in Medicaid, it “must determine a refugee applicant’s eligibility for Medicaid as medically needy[,]” and provide assistance “to all refugees eligible under its State plans.” 45 C.F.R. § 400.94(b)–(c). If the refugee is in one of the groups that must be covered, see 8 U.S.C. § 1396a(10), then the refugee’s status as a noncitizen does not bar the refugee from receiving Medicaid. See 8 U.S.C. § 1612(a)(2)(A)(i); 45 C.F.R. § 400.94(c). If a refugee is not eligible for Medicaid under a state plan, then the refugee may be eligible for the federally funded Refugee Medical Assistance Program. 45 C.F.R. § 400.94(d).
FACTUAL AND PROCEDURAL HISTORY
Tennessee withdrew from participation in the Refugee Resettlement Program in 2008. Tennessee, 329 F. Supp. 3d at 608. ORR designated the Catholic Charities of Tennessee, and its subsidiary the Tennessee Office for Refugees, to administer refugee services in Tennessee. Ibid. The General Assembly asserts that, from the time of the state’s withdrawal until 2016, the federal government resettled more than 13,000 refugees in Tennessee. Refugees who satisfy eligibility criteria can enroll in TennCare, Tennessee’s Medicaid program. The General Assembly states in its complaint that in 2015, it spent over $31 million dollars in state funds “to support the federal refugee resettlement program through TennCare.”
In 2016, the General Assembly passed Senate Joint Resolution 467 (“SJR 467”), directing the Tennessee Attorney General4 to “initiate or intervene” in a civil action on behalf of Tennessee for alleged violations of the Tenth Amendment with respect to the operation and implementation of the Refugee Resettlement Program. S. Res. 467, 109th Gen. Assembly, at 3 (Tenn. 2016). SJR 467 stated that if the Attorney General declined to file suit, then “the Speaker of the Senate and the Speaker of the House of Representatives are authorized to employ outside counsel to commence a civil action effectuating the purposes of this resolution.” Id. at 4. The General Assembly sent SJR 467 to the Governor of Tennessee. He returned it without his signature. The Governor explained in an accompanying statement that he “trust[ed] the Attorney General to determine whether the state has a claim in this case or in any other,” and noted his
4The formal title of Tennessee’s Attorney General is “Attorney General and Reporter.” See Tennessee ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 772 n.58 (Tenn. Ct. App. 2001). This opinion uses a shortened version of the Attorney General’s title.

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e99 ofP2a9ge:P7ageID 1188(9 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 7

“constitutional concerns about one branch of government telling another what to do.” The General Assembly took no further legislative action on SJR 467.
The Attorney General did not file suit. In a letter to the General Assembly, he explained that he thought that the Tenth Amendment theories “that underpin SJR 467 are unlikely to provide a viable basis for legal action.” Letter from Herbert H. Slatery, III, Attorney General and Reporter, Tennessee, to Tennessee Senate Chief Clerk Russell Humphrey and Tennessee House of Representatives Chief Clerk Joe McCord, at 3 (July 5, 2016) (hereinafter “Slatery Letter”). The Attorney General then, “to the extent allowed by Tennessee law delegate[d his] constitutional . . . and statutory . . . authority to commence litigation on behalf of the State of Tennessee to staff counsel for the General Assembly for the limited purpose of pursuing litigation to address the issues raised in SJR 467 in the manner provided for by SJR 467.” Id. at 4.
The General Assembly, acting for itself and on behalf of Tennessee, along with two members of the Tennessee General Assembly, Senator John Stevens and Representative Terri Lynn Weaver, in their official and individual capacities, filed suit in the Western District of Tennessee against the United States Department of State, HHS, ORR, and several federal government officials in their official capacities (collectively “State Department”).5 It alleged that, despite Tennessee’s withdrawal from the Refugee Resettlement Program, the federal government “coerced” Tennessee to continue funding the program “by threatening the state with the loss of federal Medicaid funding.” The General Assembly claimed that, because Tennessee must enroll eligible refugees in TennCare, the state “is forced to expend substantial amounts of state taxpayer money to fund the resettlement program” despite its withdrawal. It asserted that 42 U.S.C. § 1396c represents impermissible coercion, because if Tennessee does not enroll eligible refugees in TennCare, Tennessee could lose of 20% of its state budget.6 The General
5The General Assembly sued Secretary of State Michael Pompeo, Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration Carol Thompson O’Connell, Secretary of HHS Alex Azar II, and the Director of the ORR, E. Scott Lloyd.
6Tennessee has not attempted to alter its state Medicaid plan. The General Assembly has not passed any legislative measures that would bar refugees from receiving TennCare. See Tennessee v. U.S. Dep’t of State, 329 F. Supp. 3d 597, 618 (W.D. Tenn. 2018). The complaint does not allege that CMS has threatened to remove Tennessee’s FMAP, other than the fact that 42 U.S.C. § 1396c exists.

Case 1:17-cv-01C0a4s0e-:S1T8A-5-e4g7b8 DoDcoucmumenetn5t:340F-2iled 0F7ile/2d4:/0179/24P/a2g0e1910 oPf a2g9e: 8PageID 118(190 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 8

Assembly sought a declaratory judgment that the State Department had violated the Spending Clause and Tenth Amendment in its implementation of the Refugee Act. It also requested injunctive relief prohibiting the federal government from settling refugees in Tennessee until the United States paid for all resettlement costs, and to compel the State Department to comply with the Spending Clause and the Tenth Amendment by “fund[ing] refugee resettlement from federal dollars and without any involuntary contribution from the State of Tennessee[.]”
The State Department moved to dismiss for lack of subject-matter jurisdiction. It asserted that the General Assembly and the individual legislators lacked Article III standing, and challenged the General Assembly’s authority to bring suit on behalf of the state of Tennessee. Tennessee, 329 F. Supp. 3d at 610. The State Department disputed that the case was ripe because Tennessee had not amended its Medicaid plan, and so did not actually face the loss of its FMAP. Id. at 617. The State Department also contended that 42 U.S.C. § 1316 of the Medicaid Act precluded district-court review of the General Assembly’s claims. Tennessee, 329 F. Supp. 3d at 619. Finally, it also moved to dismiss for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6), because the General Assembly had not shown that Tennessee’s obligation to provide Medicaid to eligible refugees violated the Tenth Amendment or that the possible loss of Tennessee’s FMAP for failure to comply was an unconstitutionally coercive exercise of Spending Clause power. Tennessee, 329 F. Supp. 3d at 621. The district court granted the State Department’s motions.7 Id. at 629. This appeal followed.
ANALYSIS
The General Assembly argues that the district court erred in its conclusion that it lacked subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) when it ruled that: (1) no plaintiff had standing; (2) the controversy was not ripe for review; and (3) 42 U.S.C. § 1316 precluded its review. It also argues that the district court erred in granting the State Department’s motion to

7Three organizations that assist refugees, the Tennessee Immigrant and Refugee Rights Coalition, Bridge Refugee Services Inc., and the Nashville International Center for Empowerment, moved to intervene. The district court denied that motion as moot when it granted the State Department’s motion to dismiss. See Tennessee, 329 F. Supp. 3d at 604. These organizations, as well as the National Health Law Program and the National Immigration Law Center, have filed amicus briefs.

Case 1:17-cv-01C0a4s0e-:S1T8A-5-e4g7b8 DoDcoucmumenetn5t:340F-2iled 0F7ile/2d4:/0179/24P/a2g0e1911 oPf a2g9e: 9PageID 119(101 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 9

dismiss for failure to state a claim upon which relief could be granted. The State Department asks us to affirm the district court.
Standard of Review
We review the district court’s decision to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) de novo. Cartwright v. Garner, 751 F.3d 752, 760 (6th Cir. 2014). We review the district court’s factual findings for clear error and its application of the law to the facts de novo. Ibid. We also review a district court’s dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) de novo. Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 605 (6th Cir. 2005).
Standing
The first issue we must analyze is whether the General Assembly has standing. Article III, § 2 of the Constitution provides that the judicial power of the United States “extends only to ‘Cases’ and ‘Controversies.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting U.S. Const. Art. III, § 2). Standing “ensure[s] that federal courts do not exceed their authority” and “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Ibid. The “irreducible constitutional minimum of standing” requires the plaintiff to show three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
[A] plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). When a case “is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). “[I]n all standing inquiries, the critical question is whether at least one petitioner has ‘alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federalcourt jurisdiction.’” Horne v. Flores, 557 U.S. 433, 445 (2009) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)) (emphasis in original). Standing is a jurisdictional

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requirement. See Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912, 915 (6th Cir. 2002). If no plaintiff has standing, then the court lacks subject-matter jurisdiction. See Lyshe v. Levy, 854 F. 3d 855, 857 (6th Cir. 2017). When a court lacks jurisdiction, it “cannot proceed at all in any cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). Therefore, if the General Assembly lacks standing (acting for itself or on behalf of the state), and the individual legislators lack standing, we need not reach the other issues: ripeness, statutory preclusion, and failure to state a claim upon which relief can be granted.
Legislative Standing: The General Assembly’s Standing to Sue on its own Behalf
Courts have grappled with the complicated question of when a legislative body, or a group of legislators from that body, has standing to sue. Like all standing questions, that analysis begins with the requirement of a concrete and particularized injury that is actual or imminent. See Spokeo, 136 S. Ct. at 1548. An injury satisfies these criteria when the injury affects the plaintiff in a personal and individual way, and actually exists, even if the injury is intangible. Id. at 1548–49. A legislative body may, in some circumstances, sue as an institutional plaintiff if it has suffered an institutional injury. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015). An institutional injury “constitutes some injury to the power of the legislature as a whole rather than harm to an individual legislator.” Kerr v. Hickenlooper, 824 F.3d 1207, 1214 (10th Cir. 2016). Such an injury is not confined to a single legislator, or a small group, but affects each member of the body equally. Ibid. Assessing whether a legislative body has suffered an institutional injury sufficient for Article III standing turns on the facts and circumstances of the particular case.
Two Supreme Court cases illustrate when a portion of a legislative body may have standing, see Coleman v. Miller, 307 U.S. 433 (1939),8 and when the entire legislative body has
8Chief Justice Hughes wrote “the Opinion of the Court.” Coleman v. Miller, 307 U.S. 433, 435 (1939). Justices Black, Roberts, Frankfurter, and Douglas concurred in the judgment, although they did not think that the petitioners had standing. See id. at 456 (Black, J., concurring); id. at 460 (opinion of Frankfurter, J.). Justices Butler and McReynolds dissented on the merits. See id. at 470–74 (Butler, J., dissenting). In Raines v. Byrd, 521 U.S. 811, 822 n.5 (1997), the Supreme Court concluded that Chief Justice Hughes’s opinion on standing controlled because Justices Butler and McReynolds must have joined the opinion on standing. Otherwise, the Court explained, Justice Frankfurter would have written the opinion of the court because only two Justices joined Chief Justice Hughes’s

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standing. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015). Coleman presented a challenging question concerning legislative standing, as well as the Supreme Court’s jurisdiction. In 1937, the Kansas Senate voted for the second time on whether to ratify the Child Labor Amendment to the U.S. Constitution.9 Coleman, 307 U.S. at 435–36. The Kansas Senate tied 20-20, and the Lieutenant Governor, as the presiding officer, cast a tiebreaking vote in favor of ratification. Twenty-one Kansas state senators sought a writ of mandamus in the Supreme Court of Kansas challenging the Lieutenant Governor’s right to cast the deciding vote, as well as whether the Child Labor Amendment could still be ratified. Id. at 436. The Supreme Court of Kansas denied the writ, and the Supreme Court of the United States granted certiorari. Id. at 436–37. As a threshold matter, the Supreme Court considered whether the senators had standing to seek review of the decision of the Supreme Court of Kansas.10 Id. at 437.
The Supreme Court observed that “the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification.” Id. at 438. The senators, the Court explained, had a “plain, direct and adequate interest in maintaining the effectiveness of their votes.” Ibid. In support of this conclusion, the Court examined past cases in which it had recognized that federal and state officials and administrative commissions had a legitimate interest in resisting attempts to prevent enforcement of statutes that confer official duties on the officials and commissions. Id. at 441–42. The state official did not need to have suffered a personal injury because, if he had a duty to enforce the statute, then he had an interest in a federal case that considered whether the statute was constitutional. See id. at 443–45. The Court also pointed out that it had found standing when citizens challenged whether certain

opinion on the merits. Ibid. The Supreme Court has treated Chief Justice Hughes’s opinion as controlling in other cases. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2665 & n.13 (2015) (discussing Coleman in relation to legislative standing), but see id. at 2696–97 (Scalia, J., dissenting) (contending that Coleman was “a peculiar case that may well stand for nothing”).
9The Kansas Senate had initially adopted a resolution rejecting the amendment in 1925. Coleman, 307 U.S. at 435.
10The Supreme Court of Kansas had concluded that the senators had standing to sue because the Kansas Senate had passed a resolution directing Kansas’s Attorney General to appear on behalf of the state, and Kansas joined the case as a party defendant. Coleman, 307 U.S. at 437 & n.2.

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exercises of state legislative power were consistent with federal constitutional requirements. Id. at 445–46. The Court concluded:
In the light of this course of decisions, we find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision.
Id. at 446.
Coleman mingled its federal-question jurisdiction and Article III standing analyses. Even so, subsequent cases examining Coleman have identified some at least one core principle concerning legislative-body standing. Courts have concluded that, on the question of whether members of a legislative body have standing, Coleman at most held that “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Raines v. Byrd, 521 U.S. 811, 823 (1997) (footnote omitted). See also Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 453–54 (6th Cir. 2017) (“An apparent exception to the general rule against legislative standing arises when the legislators are suing on a vote-nullification theory and allege that if their votes had been given effect, those votes would have been sufficient to defeat or enact a specific legislative action.”); Baird v. Norton, 266 F.3d 408, 412 (6th Cir. 2001) (holding that a member of the Michigan House and a Michigan state senator did not have standing to challenge gaming compacts approved by a concurrent-resolution procedure because neither plaintiff could show that his or her individual vote could have defeated the compacts under another procedure).
The Supreme Court considered whether a legislative body could raise a nullification claim in Arizona State Legislature. Arizona voters adopted Proposition 106, which amended the Arizona Constitution by removing the Arizona Legislature’s redistricting authority and vesting it in an independent commission. 135 S. Ct. at 2658. The Legislature sued, alleging that Proposition 106 and the commission’s redistricting activities deprived the Legislature of its constitutional authority over redistricting, in violation of the Elections Clause of the U.S.

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Constitution. Id. at 2658–59 (citing U.S. Const. art. I § 4, cl.1). The Supreme Court considered whether the Legislature had alleged an injury that was sufficiently concrete to meet Article III’s standing requirements. Id. at 2663.
The Court rejected the argument that, absent an attempt at redistricting, the Legislature lacked standing. Id. at 2663–64. If the Legislature had to pass a redistricting plan and seek to implement it, it would have to violate the Arizona Constitution (by passing an act that superseded a proposition), and show that the Secretary of State, who could only constitutionally implement the commission’s certified maps, would be likely to violate the Arizona Constitution by implementing the Legislature’s map. Such a showing, the Court concluded, was unnecessary to demonstrate an injury concrete enough for standing. Id. at 2664.
In assessing whether the Legislature had standing, the Court compared the Legislature’s claims with the claims in Coleman and Raines. In Raines, the Supreme Court considered whether six members of Congress had standing to challenge the constitutionality of the Line Item Veto Act. 521 U.S. at 814. The Court observed that the members of Congress did not assert a personal injury. Instead, they claimed that the Line Item Veto Act caused “a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.” Id. at 821. The nature of that injury did not permit the members to claim a “personal stake” in the suit and the alleged injury was not “sufficiently concrete” to establish Article III standing. Id. at 830.
The Supreme Court concluded that these facts distinguished the Arizona Legislature’s claimed injury from the one in Raines. Ariz. State Legislature, 135 S. Ct. at 2664. By contrast, the Arizona Legislature was “an institutional plaintiff asserting an institutional injury and it commenced this action after authorizing votes in both of its chambers . . . .” Ibid. The Arizona Legislature’s injury, the Court reasoned, was more similar to the “nullification” injury in Coleman. Id. at 2665. Proposition 106, along with the Arizona Constitution’s bar on allowing the Legislature to undermine the purpose of an initiative, “would ‘completely nullif[y]’ any vote by the Legislature now or ‘in the future,’ purporting to adopt a redistricting plan.” Ibid. (quoting Raines, 521 U.S. at 823–24). Accordingly, the Court concluded, there was a sufficiently

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concrete injury to the Legislature’s interest in redistricting (a power the Legislature claimed derived from the U.S. Constitution) that the Legislature had Article III standing. Id. at 2665–66.
The General Assembly argues that its circumstances are “virtually identical” to those in Arizona State Legislature because a majority of the General Assembly passed SJR 467. It claims that the definitive criteria for legislative standing “boils down to pure numbers.” Under the General Assembly’s standing theory, “[l]egislators have standing to sue on behalf of the legislative body where 51% of the members of the legislative body vote to authorize the lawsuit.” It argues that it has sufficiently alleged an injury, “deprivation and nullification” of its legislative powers, because its complaint alleged “that the federal refugee resettlement program and the mandates to fund programs and healthcare for refugees through Medicaid completely nullify the General Assembly’s votes to appropriate state funds as is its right and obligation under the Tennessee Constitution.” The General Assembly emphasizes that “the underlying cause of action itself—the Tenth Amendment to the United States Constitution—makes it clear that Defendants are infringing on the State’s sovereignty and nullifying its powers.”
None of the cases the General Assembly relies on demonstrate that “pure numbers” or a majority of votes on a resolution to file suit confers standing on an institutional body. A vote tally is relevant in analyzing whether the legislators have a Coleman nullification claim, or if an individual legislator had been designated as the body’s representative. See Kerr, 824 F.3d at 1215 (“In determining whether a party may rely on an institutional injury to demonstrate standing, the [Supreme] Court has considered whether the plaintiffs represent their legislative body as an institution.”). Raines “attach[ed] some importance” to the fact that the Senate and House had not authorized any of the six plaintiffs to represent their Houses of Congress, and in fact, Congress “actively oppose[d]” the suit.” 521 U.S. at 829; see also Ariz. State Legislature, 135 S. Ct. at 2664. Raines also noted that the six plaintiffs did not form a sufficient bloc to bar the enactment of the Line Item Veto Act, unlike in Coleman. 521 U.S. at 822–24. Similarly, Arizona State Legislature, 135 S. Ct. at 2664, observed that the Arizona Legislature had brought suit as an institution after authorizing votes.
Raines and Arizona State Legislature are not just about numbers. What Raines demonstrates is that individual legislator plaintiffs cannot bring suit for an alleged institutional

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injury. 521 U.S. at 821. But an institutional body can bring suit for such an alleged injury. Ariz. State Legislature, 135 S. Ct. at 2664. See also Kerr, 824 F.3d at 1214 (“Viewing [Raines, Coleman, and Ariz. State Legislature] together, individual legislators may not support standing by alleging only an institutional injury.”). SJR 467 lends support to the General Assembly’s claim that it brings suit as an institutional body, as well as the individual legislators’ claims to standing as the General Assembly’s authorized representatives. See United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976) (noting House of Representatives resolution authorizing intervention of congressman on behalf of a congressional subcommittee and the House of Representatives). But SJR 467, by itself, is not sufficient to confer Article III standing. See Ariz. State Legislature, 135 S. Ct. at 2664; Kerr, 824 F.3d at 1216. An institutional plaintiff must still satisfy Article III’s standing requirements. To have standing, the General Assembly must have alleged that it has suffered “an actual or imminent injury that is traceable to the defendant and redressable by the court.” Crawford, 868 F.3d at 452.
To determine whether the General Assembly’s alleged injury satisfies that criteria, it is helpful to delve further into what constitutes a concrete “institutional injury” for standing, beyond a claim that an injury that is directed towards the legislative body and affects all members equally. See Ariz. State Legislature, 135 S. Ct. at 2664; Raines, 521 U.S. at 821; Kerr, 824 F.3d at 1215. In both Coleman and Arizona State Legislature, the injury “reside[d] in the disruption of the legislative process . . . .” U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 67 (D.D.C. 2015). The plaintiffs in both Coleman and Arizona State Legislature had alleged that an action at the state legislative level had interfered with their federal constitutional prerogatives. Coleman is not precisely an “institutional injury” case—rather, it is a claim by some legislators that state procedural irregularities undermined their duty under the U.S. Constitution and nullified their votes. 307 U.S. at 438. Similarly, in Arizona State Legislature, the Legislature argued that Proposition 106, was inconsistent with the Elections Clause of the U.S. Constitution, which the Legislature claimed vested it with the responsibility for redistricting. 135 S. Ct. at 2663.
Other cases finding that a legislative body alleged a concrete institutional injury, and so had standing, similarly centered on a disruption to that body’s specific powers. In AT&T, the

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United States Court of Appeals for the District of Columbia Circuit concluded that the House of Representatives had standing to intervene in a suit that the Department of Justice had filed to block AT&T from complying with a House subcommittee subpoena. 551 F.2d at 391. The court held, after a brief analysis, that “the House as a whole has standing to assert its investigatory power, and can designate a member to act on its behalf.” Ibid. In Burwell, the district court held that the House of Representatives had alleged a concrete, particularized injury that satisfied standing through its claim that the Executive Branch had violated the Constitution by drawing funds from the Treasury without a valid appropriation. 130 F. Supp. 3d at 74. The district court emphasized that circumventing the appropriations process deprived Congress “of its constitutional role” and caused an injury “in a more particular and concrete way.” Id. at 75. These cases demonstrate that interference with a legislative body’s specific powers, such as its ability to subpoena witnesses, or a constitutionally assigned power, may create an injury that is concrete enough for Article III standing. See Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1955 n.6 (2019) (observing that the House has an “institutional interest in the manner in which it goes about its business”) (emphasis in original). But that injury must be concrete and particularized, see Spokeo, 136 S. Ct. at 1548, and in Coleman, Arizona State Legislature, AT&T, and Burwell, the interference satisfied that criteria because it affected the legislative body’s specific powers and either curtailed or threatened the exercise of those powers, impacting the entire legislature.
Merely alleging an institutional injury is not enough. See Bethune-Hill, 139 S. Ct. at 1955 (party invoking federal-court jurisdiction “bears the burden of doing more than ‘simply alleg[ing] a nonobvious harm’” (quoting Wittman v. Personhuballah, 136 S. Ct. 1732, 1737 (2016))). In Raines, the Supreme Court considered more than just numbers—it examined the alleged injury. See 521 U.S. at 821–25. The members of Congress had argued that Coleman applied because, under the Line Item Veto Act, their votes on future appropriations bills would be less effective. Id. at 825. Before the Act, the members argued, if they passed an appropriations bill, the bill would become law, or it would not. But after the Line Item Veto Act, the members argued, the bill could become law—and the President could cancel portions of the bill. Ibid. Raines cast doubt on whether this alleged injury itself was concrete enough to confer standing. See id. at 829 (“[T]he institutional injury they allege is wholly abstract and widely

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dispersed . . . .”). The Court concluded that this did not represent “vote nullification” as in Coleman, but rather a complaint about an “abstract dilution of legislative power.” Id. at 826.
The District of Columbia Circuit considered a problem similar to the one before this court, in Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (D.C. Cir. 1999). The Alaska Legislative Council, composed of certain members of the Alaska Legislature, and other members of the Legislature sued the Secretary of the Interior, alleging that federal management of federal public lands in Alaska under the Land Conservation Act infringed on Alaska’s authority in violation of the Tenth Amendment. Id. at 1335. The Council alleged that because the Alaska Constitution conferred an affirmative duty on the state’s legislators to legislate and manage state natural resources, the federal statute interfered with those duties and “nullified their legislative prerogatives regarding fish and wildlife management.” Id. at 1337. The court rejected the individual legislators’ claims to standing because an assertion that federal law blocked the Alaska Legislature from controlling hunting and fishing on federal lands alleged a loss of political power that was attributable to the Legislature as a whole. Id. at 1338. But, the court observed, there was not the “slightest suggestion” that the Lands Conservation Act had overruled or nullified any “specific act or regulation of the Alaska Legislature . . . .” Ibid. The court acknowledged that the Council could sue in the name of the Legislature under Alaska law, but held that the Council’s claimed injury failed. The Council’s complaints were identical to those of the individual legislators. The alleged injury, that federal law interfered with the state’s authority to manage its fish and wildlife, was an injury the state purportedly suffered. Ibid. If the Act “diminishe[d] the State’s authority, it injures state sovereignty, not legislative sovereignty.” Id. at 1338–39 (emphasis added).
In our case, one of the General Assembly’s claimed injuries is an alleged injury to the state—and not the General Assembly. It asserts that the State Department is “infringing on the State’s sovereignty and nullifying its powers.” This claim, that the federal government is commandeering state funds to support the Refugee Resettlement Program in violation of the Tenth Amendment through a statute that permits eligible refugees to enroll in Medicaid, is, like the injury described in Alaska Legislative Council, an alleged injury to the state, not the legislature. See id. at 1338–39. This is not an injury that confers standing on the General

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Assembly. See id. at 1339 (“[T]he Legislature suffers no separate, identifiable, judicially cognizable injury that entitles it to sue on its own behalf.”).
The General Assembly argues that its votes to appropriate state funds have been “completely nullif[ied]” through the obligation to provide Medicaid to eligible refugees. The Tennessee Constitution vests the General Assembly with Tennessee’s legislative authority and the power to appropriate funds. Tenn. Const. art. 2, §§ 3, 24. But the General Assembly has not alleged that it cannot pass appropriations bills,11 and so its insistence that its circumstances are identical to those in Arizona State Legislature is misplaced. The Arizona Legislature could not take any redistricting action without violating the Arizona Constitution—Proposition 106 removed the redistricting power—and so made the injury concrete. Ariz. State Legislature, 135 S. Ct. at 2663. The General Assembly, however, can pass appropriations bills, which can allocate or not allocate funds as it wishes. But, because Tennessee voluntarily participates in Medicaid, and is required, as a condition of receiving federal funding, to cover individuals who satisfy the eligibility criteria (including refugees), the General Assembly has appropriated funds for the state share of Medicaid. The General Assembly’s objection arises from 8 U.S.C. § 1612, which permits refugees to enroll in Medicaid if they satisfy the other criteria for eligibility.
This claimed injury appears to derive, if anywhere, from the alleged injury to Tennessee’s sovereignty. See Alaska Legislative Council, 181 F.3d at 1338–39. The impact on the General Assembly’s obligation to appropriate funding is more akin to the alleged injury in

11At oral argument, the General Assembly fleshed out its standing argument by asserting that the injury arises from the General Assembly’s inability to balance the state budget because, as refugees are settled in Tennessee, the federal government can commandeer state funds by placing more refugees in Tennessee and, as some of those refugees might be eligible for Medicaid, Tennessee would have to spend money. This, the General Assembly asserts, forces Tennessee to disturb its budget and violate its own constitution. The General Assembly raised this concern in the context of its complaint that Tennessee “is not consulted or informed of the number of refugees that will be resettled within its borders . . . .” The argument about consultation (or the General Assembly’s clarification about balanced budget problems) was not raised substantially in its briefs. The General Assembly’s complaint does not allege that refugee placements have caused, or threaten to cause, its budget to become unbalanced. That something could happen does not satisfy the requirement of imminence. See Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 454–55 (6th Cir. 2017). Further, 8 U.S.C. § 1522(a)(2) provides guidelines to ensure that the General Assembly’s hypothetical, that the federal government might place 10,000 refugees in one state in the last two weeks of the fiscal year could not happen. Given that from 2008 to 2016, the federal government has settled (according to the General Assembly) a total of 13,000 refugees in the state, we do not conclude that this hypothetical set of circumstances represents a threatened injury that is “real, immediate, and direct.” Davis v. FEC, 554 U.S. 724, 734 (2008).

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Raines, of an abstract “loss of political power.” See 521 U.S. at 821. The General Assembly has not identified an injury that it has suffered, such as disruption of the legislative process, a usurpation of its authority, or nullification of anything it has done, unlike in Coleman, Arizona State Legislature, or Burwell. The district court did not err when it concluded that the General Assembly lacked Article III standing. Its alleged injury simply does not satisfy the first element of standing. See Spokeo, 136 S. Ct. at 1548; Raines, 521 U.S. at 826. We do not address whether a suit brought by a different party resting upon an alleged injury to Tennessee’s state sovereignty would satisfy Article III standing.
The Individual Legislators’ Standing
Having concluded that the General Assembly lacks standing to sue on its own behalf, we turn to whether the individual legislators have standing. Senator Stevens and Representative Weaver filed suit in both their individual and official capacities. Before the district court, they argued that they had official-capacity standing, rather than alleging that they had suffered a personal injury that would provide them with individual-capacity standing. See Tennessee, 329 F. Supp. 3d at 612. Before this court, their primary argument is that, because the General Assembly has standing, that body may designate Senator Stevens and Representative Weaver to act on its behalf.
An individual legislator, or group of legislators, do not have Article III standing based on an allegation of an institutional injury, or a complaint about a dilution of legislative power because “[a]n individual legislator cannot ‘tenably claim a personal stake’ in a suit based on such an institutional injury.” Kerr, 824 F.3d at 1214 (quoting Ariz. State Legislature, 135 S. Ct. at 2664); see also Crawford, 868 F.3d at 460; Baird, 266 F.3d at 412–13; Alaska Legislative Council, 818 F.3d at 1337–38. An individual legislator may, however, have standing as a representative of the legislative body. See Kerr, 824 F.3d at 1215–16 (explaining that an individual legislator may represent the body as an institution upon authorization); see also Karcher v. May, 484 U.S. 72, 81–82 (1987) (legislators intervened as representatives of the legislature); AT&T, 551 F.2d at 391 (House of Representatives designated member as official representative). But the legislative body must have standing to sue. See Karcher, 484 U.S. at

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82. Because the General Assembly lacks standing, we affirm the district court’s conclusion that Senator Stevens and Representative Weaver lack standing.
The General Assembly’s Standing to Sue on Behalf of the State of Tennessee
Even though we affirm the district court’s conclusion that the General Assembly lacks standing to sue on its own behalf, we must consider whether the General Assembly has standing to sue on behalf of Tennessee. The General Assembly argues that the Tennessee Constitution does not expressly provide that only the Attorney General has the exclusive power to litigate in the name of the state. It insists that, because the alleged injury to Tennessee’s sovereignty primarily implicates legislative powers, it is the appropriate party to file suit, and Tennessee’s separation-of-powers doctrine is flexible enough to permit the General Assembly to do so. The General Assembly also argues that SJR 467 and the Attorney General’s subsequent delegation in the Slatery Letter permit it to bring suit on behalf of Tennessee.
A state may designate an agent to represent its interests in court. This is most commonly the state’s Attorney General. See Hollingsworth v. Perry, 570 U.S. 693, 710 (2013). State law may, however, “provide for other officials to speak for the State in federal court . . . .” Ibid. For example, in Karcher, 484 U.S. at 82, two members of the New Jersey Legislature could represent New Jersey’s interests in their official capacity under New Jersey law. In assessing whether the General Assembly has the authority to represent Tennessee in federal court, we must examine Tennessee law. See Bethune-Hill, 139 S. Ct. at 1951–52 (examining Virginia law to determine if the Virginia House of Delegates could litigate on behalf of the state); Hollingsworth, 570 U.S. at 712–13 (examining California law); Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997) (examining Arizona law to determine if initiative sponsors can defend constitutionality of initiatives).
The Tennessee Attorney General is “the chief executive officer of the Legal Department of state government.” Tennessee ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 772 (Tenn. Ct. App. 2001); see also Tenn. Code Ann. § 4-3-111(1). The Attorney General is a constitutional officer appointed by the justices of the Tennessee Supreme

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e923 oPfa2g9e: 2P1ageID 120(223 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 21

Court.12 Tenn. Const. art. VI, § 5. This role carries “extensive statutory power and the broad common-law powers of the office except where these powers have been limited by statute.” Medicine Bird Black Bear White Eagle, 63 S.W.3d at 772; see also Tennessee v. Chastain, 871 S.W.2d 661, 664 (Tenn. 1994); Tennessee v. Heath, 806 S.W.2d 535, 537 (Tenn. Ct. App. 1990). Tennessee courts have given a broad construction to the Attorney General’s statutory authority. See Heath, 806 S.W.2d at 537. They also are reluctant to authorize interference with the Attorney General’s obligations. See Medicine Bird Black Bear White Eagle, 63 S.W.3d at 775 (concluding that courts do not have the power to appoint lawyers to represent officers and agencies of the state government “[i]n light of the constitutional stature and statutory duties of the Attorney General”).
Tennessee law provides that the Attorney General has the duty to try or direct “all civil litigated matters and administrative proceedings in which the state or any officer, department, agency, board, commission or instrumentality of the state may be interested[.]” Tenn. Code Ann. § 8-6-109(b)(1); see also Medicine Bird Black Bear White Eagle, 63 S.W.3d at 772. The Attorney General has the exclusive authority “to attend to all business of the state” in both criminal and civil matters in Tennessee’s appellate courts. Tenn. Code Ann. § 8-6-109(b)(2); Tennessee v. Potter, 61 S.W.3d 348, 351 (Tenn. Crim. App. 2001). The Attorney General’s exclusive authority also extends to cases in federal court.
The attorney general and reporter shall attend in person, or by assistant, and prosecute or defend, as the case may be, any and all suits, civil or criminal in the [S]upreme [C]ourt of the United States, in the United States court of appeals for the judicial circuit of the United States comprising the state of Tennessee, or in any of the district courts of the United States held in the state of Tennessee, in which suit or suits the state may be a party, or in which the state has or may have interests of a pecuniary nature.
Tenn. Code Ann. § 8-6-110 (emphases added). In interpreting statutory language, Tennessee courts look to the “natural and ordinary meaning” of statutory language in the context of the entire statute and interprets the statute to effectuate the legislative intent. Potter, 61 S.W.3d at 350. Tennessee courts have concluded that similar language in other statutes created a duty upon
12The Tennessee Attorney General “became a constitutional officer with the adoption of the 1853 amendments to the Constitution of 1835.” Medicine Bird Black Bear White Eagle, 63 S.W.3d at 772.

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e924 oPfa2g9e: 2P2ageID 120(234 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 22

state officials. See Dobbins v. Crowell, 577 S.W.2d 190, 192–93 (Tenn. 1979) (concluding that statutory language vested duty and authority to enforce solely in the Attorney General); Potter, 61 S.W.3d at 350–51 (citing Tenn. Code Ann. § 8-7-103, which states that district attorneys general “shall prosecute” and concluding that this “place[s] a duty upon the district attorney general”). It appears that Tennessee has selected the Attorney General as the exclusive representative of its interests in federal court. See Tenn. Code Ann. § 8-6-110.
The General Assembly contends that, should we hold that it lacks the authority to sue in the name of the state, we would effectively give the Attorney General a veto over the General Assembly’s powers to litigate. The difficulty with this argument is that the General Assembly has not identified any Tennessee authority granting it the power to initiate a case on behalf of the state. Tenn. Code Ann. § 8-6-109, which sets forth the duties of the Attorney General, does permit the Attorney General to “exercise discretion to defend the constitutionality and validity of all private acts and general laws of local application enacted by the general assembly and of administrative rules or regulations of this state.” Id. (b)(10). If the Attorney General chooses not to defend a law, then he must certify that decision to the Speaker of each House of the General Assembly. Ibid. Upon such certification, the “speakers, acting jointly, may employ legal counsel to defend the constitutionality of such law.” Id. (c). But, as the district court observed, this statute is not applicable because the Attorney General chose not to file suit against the federal government, rather than choosing not to defend the constitutionality of some law that the General Assembly enacted. Tennessee, 329 F. Supp. 3d at 616. The General Assembly’s argument, that affirming the district court would nullify Tenn. Code Ann. § 8-6-109(c) and similar statutes in other jurisdictions incorrectly assumes that a suit to defend the constitutionality of state law is the same as the authority to initiate a suit to challenge federal law. We note that Tennessee has not passed any substantive law that would affect the refugee Medicaid controversy.
Finally, we observe that, even when litigation implicates the General Assembly’s constitutionally granted power to raise and spend funds, the General Assembly still does not have the authority to bring suit in the name of the state. See Tenn. Code Ann. § 8-6-109(e). The Attorney General is required to notify the General Assembly when the state is a party in state or

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e925 oPfa2g9e: 2P3ageID 120(245 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 23

federal court and the litigation may raise issues of potentially insufficient funding or might result in increased state expenditures. Id. (b)(11)–(12), (d). In such a case, the Speakers of the General Assembly may employ legal counsel to offer advice, “provided[] that the attorney general and reporter shall remain the state’s sole representative in federal and state court proceedings.” Id. (e). Tennessee has designated an agent to represent its interests in federal court—and that agent is not the General Assembly. See Tenn. Code Ann. § 8-6-110; Bethune-Hill, 139 S. Ct. at 1952 (“[T]he House’s argument that it has authority to represent the State’s interests is foreclosed by the State’s contrary decision.”).
The General Assembly also relies on SJR 467 and the Slatery Letter to support its argument that has authority to bring suit on behalf of the State. In the Slatery Letter, the Attorney General declined to file suit, and then stated that, “to the extent allowed by Tennessee law,” he delegated his constitutional and statutory authority “to commence litigation on behalf of the State of Tennessee to staff counsel for the General Assembly for the limited purpose of pursuing litigation to address the issues raised in SJR 467 in the manner provided for by SJR 467.” Slatery Letter, at 4. He cited Tenn. Code Ann. § 8-6-302 to support this delegation. Ibid.
The Attorney General may delegate his statutory and constitutional authority only if authorized by statute or the Tennessee Constitution. See Tenn. Const. art. II, § 2 (“No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.”); Medicine Bird Black Bear White Eagle, 63 S.W.3d at 772. There does not appear to be any constitutional provision permitting this delegation.13 Tenn. Code Ann. § 8-6-302 provides that the Attorney General, with “the concurrence of the head of the executive agency involved, may permit, by express written authorization,” staff attorneys of “various departments, agencies, boards, commissions or instrumentalities of the state to appear and represent the state” in a case “under
13The General Assembly contends that, as the injury to the state it alleges primarily implicates legislative powers, it is the proper party to file suit in the name of the state. The sole support it offers for this proposition is Tenn. Const. art. II, § 3, which vests the General Assembly with legislative authority. The legislative power encompasses the authority to make and repeal laws. See Tennessee v. Brackett, 869 S.W.2d 936, 939 (Tenn. Crim. App. 1993). Executive power concerns itself with the administration and enforcement of the law, and the judicial power centers on the authority to interpret and apply the law. Ibid. The Tennessee Constitution forbids one branch of government from taking on the duties of another branch without constitutional authorization. Tenn. Const. art. II, § 2. We do not find the General Assembly’s argument on this point persuasive.

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e926 oPfa2g9e: 2P4ageID 120(256 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 24

the direction and control of the attorney general and reporter.” This statute does not appear to support the Attorney General’s purported delegation for two reasons. First, the preceding code section, Tenn. Code Ann. § 8-6-301(c), expressly states that the Attorney General “shall not” represent the Office of Legal Services for the General Assembly14 “before the [G]eneral [A]ssembly or any committee thereof, nor shall direct or supervise such office or attorneys employed by such office.” Therefore, Tenn. Code Ann. § 8-6-302 cannot apply to the General Assembly’s staff attorneys because they cannot operate under the Attorney General’s direction. See Tennessee v. Allman, 68 S.W.2d 478, 479 (Tenn. 1934) (“It is, of course, well settled that statutes forming a system or scheme should be construed so as to make that scheme consistent in all its parts.”).
Second, the statute only applies to executive agencies. See Tenn. Code Ann. § 8-6-302 (requiring “the concurrence of the head of the executive agency involved” before the staff attorney may “appear and represent the state”). The preceding sections, Tenn. Code Ann. § 8-6301(a)–(b), emphasize the Attorney General’s authority over executive agencies, and forbid these agencies from initiating civil proceedings, except through the Attorney General. Id. (b). The General Assembly argues that it would be “inappropriate, as a matter of federalism, for a federal court to assume that the State’s Attorney General made such a delegation if he could not lawfully do so.” But the statute the Attorney General relied upon to support his delegation is, by its own terms, inapplicable to the present circumstances, and the General Assembly has not identified any other statutory or constitutional provision that would permit the Attorney General to do so—instead the General Assembly pins its hopes on SJR 467.
The State Department argues that, as “a resolution is not law and cannot amend a statute,” SJR 467 did not create a new statutory authorization permitting the General Assembly to initiate an action on behalf of Tennessee in federal court, or amend Tenn. Code Ann. § 8-6-110, which currently identifies the Attorney General as the state agent with the exclusive authority to do so. In Vertrees v. State Bd. of Elections, 214 S.W. 737, 742 (Tenn.
14The Office of Legal Services for the General Assembly has a number of statutory duties, but none of them include filing suit on behalf of the state. See Tenn. Code Ann. § 3-12-101 (listing duties of the Office of Legal Services). The General Assembly has not argued that Tennessee law authorizes the Office of Legal Services to undertake this action on behalf of the state.

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e927 oPfa2g9e: 2P5ageID 120(267 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 25

1919), the Tennessee Supreme Court considered, among other issues related to women’s partial
suffrage in Tennessee, whether elections officers had the power to provide a separate ballot box
for women’s votes. The court concluded that, as a statute authorized the elections officers to
provide a ballot box, it implied the power to provide other boxes, if it was necessary for a fair
election. The court also noted a resolution passed by the General Assembly that stated that
elections officers could provide separate ballot boxes. Ibid. The court explained that such a
resolution “was not effective to confer any additional power on our election officers, or to amend
any existing law.” Ibid. Instead, it served as “an expression of the opinion of the Legislature
and as an expression of legislative advice.” Ibid. The General Assembly, which has the burden
of establishing standing, see Spokeo, 136 S. Ct. at 1547, has not offered any Tennessee precedent
demonstrating that a resolution is effective to alter existing statutory schemes.15 While the
General Assembly may have the authority to sue in its own name in federal court to vindicate an
injury to its own rights, provided it can satisfy the essential jurisdictional requirements, we
conclude that SJR 467 did not amend the Tennessee law that provides that the Attorney General
has the exclusive responsibility to litigate on behalf of the state in federal court. See Tenn. Code
Ann. § 8-6-110.
15There is some dispute over whether SJR 467 was even validly enacted. The General Assembly maintains that, as SJR 467 “was passed by majorities in each house of the General Assembly and returned by Governor Haslam without a veto,” it became “effective pursuant to Section 18 of Article III of the Tennessee Constitution.” The State Department disagrees. It points out that the Governor did not sign SJR 467, and included a statement describing why he chose not to sign the resolution, including that he had “constitutional concerns about one branch of government telling another what to do.”
The Tennessee Constitution provides that bills and joint resolutions that pass the General Assembly must be presented to the Governor for his signature. Tenn. Const. art. III, § 18. If the Governor refuses to sign a bill or joint resolution and wishes to veto it, he must return the document to the General Assembly with his written objections within ten calendar days, not counting Sunday, or it becomes law without his signature. Ibid. If he returns the resolution with objections, “before it shall take effect [the resolution] shall be repassed by a majority of all the members elected to both houses in the manner and according to the rules prescribed in case of a bill.” Ibid. The General Assembly sent SJR 467 to the Governor on May 9, 2016. He returned it without a signature and with objections on May 20, 2016. See Tenn. Legislative Record, 109th Gen. Assembly, at 16–17 (Nov. 2016). Excluding the Sunday, this return appears to be timely. The General Assembly never repassed SJR 467. In Johnson City v. Tennessee Eastern Electric Co., 182 S.W. 587, 590 (Tenn. 1916), the Tennessee Supreme Court concluded that it is “[b]eyond question a return made by the Governor of a bill with his objections thereto in writing to the committee on enrolled bills of the house of origin, or to any member thereof, would be a good return of the bill and objections within the meaning of the Constitution.” We do not need to address this issue because the Attorney General has the sole authority to litigate in federal court on behalf of the state, Tenn. Code Ann. § 8-6-110, and there does not appear to be any precedent to support his delegation to the General Assembly. Further, Vertrees v. State Board of Elections, 214 S.W. 737, 742 (Tenn. 1919), undercuts the General Assembly’s argument that SJR 467 has altered Tennessee statutory or constitutional law in a way that would permit it to sue.

Case 1:17-cv-0C10a4se0:-S1T8A-5-4e7g8b DDooccuummeennt t5:340-F2iledF0i7le/d2:40/179/24P/2a0g1e928 oPfa2g9e: 2P6ageID 120(278 of 29)

No. 18-5478

State of Tenn., et al. v. United States Dep’t of State, et al.

Page 26

Because the General Assembly has not established that it has standing, there is no subject-matter jurisdiction. See Spokeo, 136 S. Ct. at 1547; Steel Co., 523 U.S. at 94. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). Accordingly, we do not reach the questions of ripeness, statutory preclusion, or whether the General Assembly stated a claim upon which relief could be granted. See Coal Operators & Assocs., Inc., 291 F.3d at 915.
The judgment of the district court dismissing the case for lack of standing is AFFIRMED.

Case 1:17-cv-01C0a4s0e-:S1T8A-5-e4g7b8 DoDcoucmumenetn5t:340F-3iled 0F7ile/2d4:/0179/24P/a2g0e1929 oPf a2g9e: 1PageID 120(289 of 29)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 18-5478

STATE OF TENNESSEE, by and through the Tennessee General Assembly, et al.,
Plaintiffs - Appellants,
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants - Appellees.

FILED
Jul 24, 2019
DEBORAH S. HUNT, Clerk

Before: COLE, Chief Judge; and BOGGS, Circuit Judge.*
JUDGMENT
On Appeal from the United States District Court for the Western District of Tennessee at Jackson.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s dismissal of the case for lack of standing is AFFIRMED.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

*After oral argument, Judge Julia Smith Gibbons was unavailable to participate in the panel’s decision. Chief Judge Cole and Judge Boggs act as a quorum pursuant to 28 U.S.C. § 46(d).

 </s> U.S. District Court Western District of Tennessee (Jackson) CIVIL DOCKET FOR CASE #: 1:17−cv−01040−STA−egb

LR16.2 TR4

Tennessee et al v. United States Department of State et al Assigned to: Chief Judge S. Thomas Anderson Referred to: Magistrate Judge Edward G. Bryant Case in other court: 18−05478 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 03/13/2017 Date Terminated: 03/19/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

State Of Tennessee

represented by Richard Thompson THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106 734−827−2001 Email: rthompson@thomasmore.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brennan Tyler Brooks LAW OFFICE OF B. TYLER BROOKS, PLLC 4050 Yellowfield Way Cary, NC 27518 336−707−8855 Fax: 919−584−8373 Email: btb@btylerbrookslawyer.com TERMINATED: 08/24/2018

Jay Robert Combs THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106 734−827−2001 Email: jcombs@thomasmore.org TERMINATED: 10/02/2017

Kate Margaret Oliveri THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106 734−827−2001 Email: kmoroliveri@gmail.com TERMINATED: 03/28/2019

Plaintiff General Assembly, State of Tennessee

represented by Richard Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brennan Tyler Brooks (See above for address) TERMINATED: 08/24/2018

Jay Robert Combs (See above for address) TERMINATED: 10/02/2017

Kate Margaret Oliveri

Plaintiff Senator John Stevens
Plaintiff Representative Terri Lynn Weaver
V. Defendant United States Department of State
Defendant

(See above for address) TERMINATED: 03/28/2019
represented by Richard Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brennan Tyler Brooks (See above for address) TERMINATED: 08/24/2018
Jay Robert Combs (See above for address) TERMINATED: 10/02/2017
Kate Margaret Oliveri (See above for address) TERMINATED: 03/28/2019
represented by Richard Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brennan Tyler Brooks (See above for address) TERMINATED: 08/24/2018
Jay Robert Combs (See above for address) TERMINATED: 10/02/2017
Kate Margaret Oliveri (See above for address) TERMINATED: 03/28/2019
represented by James Jordan Gilligan U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, N.W. Room 6102 Washington, DC 20530 202−514−3358 Email: james.gilligan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson U.S. Department of Justice, Civil Division Federal Programs Branch 450 Golden Gate Ave. San Francisco, CA 94102 415−436−6635 Email: stuart.j.robinson@usdoj.gov ATTORNEY TO BE NOTICED

Rex Tillerson
Defendant Bureau Of Population, Refugees, and Migration
Defendant Simon Henshaw
Defendant United States Department of Health and Human Services
Defendant Thomas E. Price
Defendant Office of Refugee Resettlement
Defendant Ken Tota

represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by

V. Intervenor Defendant Tennessee Immigrant and Refugee Rights Coalition
Intervenor Defendant Bridge Refugees Services, Inc.
Intervenor Defendant

James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Hauser Castelli AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TENNESSEE 210 25th Avenue N. Suite 1000 P.O. Box 120160 Nashville, TN 37212 615−320−7142 X303 Email: tcastelli@aclu−tn.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy ACLU IMMIGRANTS' RIGHTS PROJECT 39 Drumm St. san Franciso, CA 94111 415−343−0785 Email: cwofsy@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat ACLU IMMIGRANTS' RIGHTS PROJECT 125 Broad Street 18th Floor New York, NY 10001 212−549−2620 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Thomas Hauser Castelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nashville Intentional Center for Empowerment

represented by Thomas Hauser Castelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 03/13/2017 03/13/2017 03/13/2017 03/13/2017 03/13/2017
03/13/2017 03/13/2017 03/13/2017

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0651−2507136), filed by All Plaintiffs. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons)(Oliveri, Kate) (Entered: 03/13/2017)
2 Summons Issued as to All Defendants. The filer has been notified electronically that the summons has been issued, and the new docket entry reflects this. Upon notification of the new docket entry, the filer is to print the issued summons in order to effect service. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons) (mbm) (Entered: 03/13/2017)
3 NOTICE OF CASE TRACKING ASSIGNMENT PURSUANT TO LOCAL RULE 16.2: Pursuant to Local Rule 16.2, this case has been assigned to the Standard track. http://www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf (mbm) (Entered: 03/13/2017)
4 NOTICE TO COMPLY WITH PLAN FOR ALTERNATE DISPUTE RESOLUTION (ADR): Pursuant to Section to 2.1 of the ADR Plan, all civil cases filed on or after Sept. 1, 2014, shall be referred automatically for ADR. For compliance requirements, refer to the ADR Plan at: http://www.tnwd.uscourts.gov/pdf/content/ADRPlan.pdf (mbm) (Entered: 03/13/2017)
5 NOTICE OF RIGHT TO CONSENT TO THE EXERCISE OF CIVIL JURISDICTION BY A MAGISTRATE JUDGE Pursuant to 28 U.S.C. 636(c), Fed.R.Civ.P.73, and Local Rule 72.1, this Court has designated the Magistrate Judges of this District to conduct trials and otherwise dispose of any civil case that is filed in this Court. Your decision to consent, or not consent, to the referral of your case to a United States Magistrate Judge for trial and entry of a final judgment must be entirely voluntary. The judge or magistrate judge to whom the case has been assigned will not be informed of your decision unless all parties agree that the case may be referred to a magistrate judge for these specific purposes. A less than unanimous decision will not be communicated by this office to either the judge or magistrate judge. The consent form is available on the courts website at https://www.tnwd.uscourts.gov/forms−and−applications.php (mbm) (Entered: 03/13/2017)
6 COURTESY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 1 Complaint, filed by General Assembly, State of Tennessee, John Stevens, Terri Lynn Weaver, State Of Tennessee has been filed. For future reference, please note Electronic signatures do not match login. Please refer to the ECF User Manual and ECF Policies and Procedures. Filer is not required to resubmit document. (mbm) (Entered: 03/13/2017)
7 NOTICE of Appearance by Kate Margaret Oliveri on behalf of All Plaintiffs (Oliveri, Kate) (Entered: 03/13/2017)
8 NOTICE of Appearance by Brennan Tyler Brooks on behalf of All Plaintiffs (Brooks, Brennan) (Entered: 03/13/2017)

03/15/2017 03/24/2017
05/02/2017
05/02/2017 05/02/2017
05/02/2017 05/02/2017 05/02/2017 05/02/2017
05/02/2017 05/04/2017 05/04/2017 05/08/2017 05/11/2017
05/15/2017 06/01/2017

9 NOTICE of Appearance by Richard Thompson on behalf of All Plaintiffs (Thompson, Richard) (Entered: 03/15/2017)
10 ADMIN ORDER 2017−11 − ORDER REASSIGNING CASE. Case reassigned to Chief Judge S. Thomas Anderson for all further proceedings. Chief Judge J. Daniel Breen no longer assigned to case. Signed by Judge J. Daniel Breen on 3/24/2017. (Breen, J.) (Entered: 03/24/2017)
11 AFFIDAVIT of Service for Summons and Complaint served on Bureau of Population, Refugees and Migration on 4/6/2017, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
12 AFFIDAVIT of Service for Summons and Complaint served on Ken Tota on 3/20/17, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
13 AFFIDAVIT of Service for Summons and Complaint served on Office of Refugee Resettlement on 3/20/17, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
14 AFFIDAVIT of Service for Summons and Complaint served on Rex Tillerson on 3/22/17, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
15 AFFIDAVIT of Service for Summons and Complaint served on Simon Henshaw on 4/6/17, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
16 AFFIDAVIT of Service for Summons and Complaint served on Thomas E. Price on 3/23/17, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
17 AFFIDAVIT of Service for Summons and Complaint served on US Department of Health and Human Services on 3/23/17, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
18 AFFIDAVIT of Service for Summons and Complaint served on US Department of State on 3/22/17, filed by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. (Oliveri, Kate) (Entered: 05/02/2017)
19 NOTICE of Appearance by James Jordan Gilligan on behalf of All Defendants (Gilligan, James) (Entered: 05/04/2017)
20 NOTICE of Appearance by Stuart Justin Robinson on behalf of All Defendants (Robinson, Stuart) (Entered: 05/04/2017)
21 Consent MOTION to Extend Deadline to File Motion to Dismiss the Complaint (proposed order submitted), MOTION for Leave to File Excess Pages (proposed order submitted) by All Defendants. (Gilligan, James) (Entered: 05/08/2017)
22 RESPONSE in Opposition re 21 Consent MOTION to Extend Deadline to File Motion to Dismiss the Complaint (proposed order submitted) MOTION for Leave to File Excess Pages (proposed order submitted) filed by All Plaintiffs. (Oliveri, Kate) (Entered: 05/11/2017)
23 ORDER GRANTING DEFENDANTS MOTION FOR EXTENSION OF TIME. Signed by Chief Judge S. Thomas Anderson on 5/15/17. (Anderson, S.) (Entered: 05/15/2017)
24 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by All Defendants. (Attachments: # 1 Memorandum of Facts and Law in Support of Defendants' Motion to Dismiss, # 2 Affidavit (Declaration of Sarah deLone), # 3 Affidavit (Declaration of James Gilligan))(Gilligan, James) (Entered: 06/01/2017)

06/02/2017
06/05/2017
06/05/2017
06/06/2017 06/06/2017 06/12/2017 06/13/2017 06/15/2017 06/16/2017 06/22/2017 06/22/2017 06/23/2017 06/23/2017 07/14/2017 08/18/2017

25 MOTION to Intervene (Proposed Order Submitted) by Tennessee Immigrant and Refugee Rights Coalition, Bridge Refugees Services, Inc., Nashville Intentional Center for Empowerment. (Attachments: # 1 Memorandum in Support of Motion to Intervene, # 2 Affidavit Declaration of Stephanie Teatro, # 3 Affidavit Declaration of Susan Speraw, # 4 Affidavit Declaration of Gatluak Thach, # 5 Exhibit Proposed Motion to Dismiss, # 6 Exhibit Proposed Memorandum in Support of Motion to Dismiss, # 7 Exhibit SJR 0467, # 8 Exhibit Legislative Excerpts and Website, # 9 Exhibit Governor Statement, # 10 Exhibit Attorney General Letter)(Castelli, Thomas) (Entered: 06/02/2017)
26 MOTION for Leave to Appear Pro Hac Vice (Proposed order submitted) (Filing fee $ 150 receipt number 0651−2559543) by Bridge Refugees Services, Inc., Nashville Intentional Center for Empowerment, Tennessee Immigrant and Refugee Rights Coalition. (Attachments: # 1 Supplement Certificate of Good Standing − NDCA, # 2 Supplement Certificate of Good Standing − CA Supreme Court)(Wofsy, Cody) (Entered: 06/05/2017)
27 MOTION for Leave to Appear Pro Hac Vice (Proposed order submitted) (Filing fee $ 150 receipt number 0651−2559605) by Bridge Refugees Services, Inc., Nashville Intentional Center for Empowerment, Tennessee Immigrant and Refugee Rights Coalition. (Attachments: # 1 Supplement Certificate of Good Standing − EDNY, # 2 Supplement Certificate of Good Standing − SCNY)(Jadwat, Omar) (Entered: 06/05/2017)
28 ORDER GRANTING OMAR C. JADWAT'S MOTION TO APPEAR PRO HAC VICE 27 . Signed by Chief Judge S. Thomas Anderson on 6/6/17. (Anderson, S.) (Entered: 06/06/2017)
29 ORDER GRANTING CODY H. WOFSY'S MOTION TO APPEAR PRO HAC VICE 26 . Signed by Chief Judge S. Thomas Anderson on 6/6/17. (Anderson, S.) (Entered: 06/06/2017)
30 Consent MOTION for Extension of Time to File Response/Reply as to 25 MOTION to Intervene (Proposed Order Submitted) by All Defendants. (Robinson, Stuart) (Entered: 06/12/2017)
31 ORDER Granting 30 Motion for Extension of Time. Responses due by 6/23/2017. Signed by Chief Judge S. Thomas Anderson on 6/13/17. (Anderson, S.) (Entered: 06/13/2017)
32 NOTICE of Appearance by Jay Robert Combs on behalf of All Plaintiffs (Combs, Jay) (Entered: 06/15/2017)
33 RESPONSE in Opposition re 25 MOTION to Intervene (Proposed Order Submitted) filed by All Plaintiffs. (Attachments: # 1 Exhibit)(Combs, Jay) (Entered: 06/16/2017)
34 MOTION for Extension of Time to File , MOTION for Extension of Time to File Response/Reply by All Plaintiffs. (Oliveri, Kate) (Entered: 06/22/2017)
35 ORDER GRANTING MOTION FOR EXTENSION OF TIME. Signed by Chief Judge S. Thomas Anderson on 6/22/17. (Anderson, S. Thomas) (Entered: 06/22/2017)
36 RESPONSE in Opposition re 25 MOTION to Intervene (Proposed Order Submitted) filed by All Defendants. (Attachments: # 1 Exhibit A)(Robinson, Stuart) (Entered: 06/23/2017)
37 MOTION for Leave to File Reply (Proposed Order Submitted) by Bridge Refugees Services, Inc., Nashville Intentional Center for Empowerment, Tennessee Immigrant and Refugee Rights Coalition. (Attachments: # 1 Intervenor−Defendants' Reply)(Wofsy, Cody) (Entered: 06/23/2017)
38 RESPONSE in Opposition re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Oliveri, Kate) (Entered: 07/14/2017)
39 REPLY to Response to Motion re 38 Response in Opposition to Motion, (Reply Memorandum in Support of Defendants' Motion To Dismiss) filed by All Defendants. (Gilligan, James) (Entered: 08/18/2017)

08/28/2017 10/02/2017 10/02/2017 11/22/2017 11/22/2017
03/19/2018 03/19/2018 05/10/2018
05/11/2018 08/23/2018 08/24/2018 03/28/2019 03/28/2019 07/24/2019 10/24/2019

40 REPLY to Response to Motion re 39 Reply to Response to Motion filed by All Plaintiffs. (Attachments: # 1 Exhibit)(Oliveri, Kate) (Entered: 08/28/2017)
41 MOTION to Withdraw as Attorney , Jay R. Combs by General Assembly, State of Tennessee. (Combs, Jay) (Entered: 10/02/2017)
42 ORDER GRANTING 41 MOTION TO WITHDRAW AS ATTORNEY. Signed by Chief Judge S. Thomas Anderson on 10/2/2017. (mbm) (Entered: 10/03/2017)
43 ORDER DENYING INTERVENOR−DEFENDANTS' MOTION FOR LEAVE TO FILE A REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO INTERVENE 37 . Signed by Chief Judge S. Thomas Anderson on 11/22/17. (skc) (Entered: 11/22/2017)
44 NOTICE by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM −− FILING OF SUPPLEMENTAL AUTHORITY (Attachments: # 1 Exhibit − County of Santa Clara v. Donald J. Trump et al., Case Nos. 17−cv−00574−WHO & 17−cv−00485−WHO (N.D. Cal. Nov. 20, 2017))(Brooks, Brennan) (Entered: 11/22/2017)
45 ORDER GRANTING DEFENDANTS 24 MOTION TO DISMISS AND DENYING 25 MOTION TO INTERVENE AS MOOT. Signed by Chief Judge S. Thomas Anderson on 3/19/18. (mbm) (Entered: 03/19/2018)
46 JUDGMENT. Signed by Chief Judge S. Thomas Anderson on 3/19/2018. (mbb) (Entered: 03/19/2018)
47 NOTICE OF APPEAL as to 46 Judgment, 45 Order, Terminate Motions by General Assembly, State of Tennessee, John Stevens, State Of Tennessee, Terri Lynn Weaver. Filing fee $ 505, receipt number ATNWDC−2788435. (Brooks, Brennan) (Entered: 05/10/2018)
48 USCA Case Number 18−5478 for 47 Notice of Appeal filed by General Assembly, State of Tennessee, John Stevens, Terri Lynn Weaver, State Of Tennessee. Amy E. Gigliotti, Case Manager. (skc) (Entered: 05/11/2018)
49 Consent MOTION to Withdraw as Attorney proposed order submitted by All Plaintiffs. (Brooks, Brennan) (Entered: 08/23/2018)
50 ORDER GRANTING 49 MOTION OF ATTORNEY B. TYLER BROOKS TO WITHDRAW AS COUNSEL FOR PLAINTIFFS. Signed by Chief Judge S. Thomas Anderson on 8/24/18. (mbm) (Entered: 08/24/2018)
51 Consent MOTION to Withdraw as Attorney proposed order submitted by All Plaintiffs. (Oliveri, Kate) (Entered: 03/28/2019)
52 ORDER GRANTING 51 MOTION OF ATTORNEY KATE OLIVERI TO WITHDRAW AS COUNSEL FOR PLAINTIFFS. Signed by Chief Judge S. Thomas Anderson on 3/28/19. (mbm) (Entered: 03/28/2019)
53 ORDER of USCA as to 47 Notice of Appeal. Mandate to issue. (skc) (Entered: 07/24/2019)
54 MANDATE of USCA as to 47 Notice of Appeal. (cdi) (Entered: 10/24/2019)


[CONTENT] the General Assembly of Tennessee | General Assembly | Tennessee | the U.S. Department of State's | DOS | the United States | the Refugee Act | the Office of Refugee Resettlement | the Department of Health and Human Services | HHS ||| March 13, 2017 | the General Assembly Tennessee | the U.S. District Court | the Western District | Tennessee | the Refugee Resettlement Act | Refugee Medical Assistance Program | the Spending Clause | the Tenth Amendment | Medicaid ||| The General Assembly ||| 1980 | the General Assembly of Tennessee ||| Tennessee | Medicaid ||| Tennessee | 2007 ||| Medicaid | 20% ||| Catholic Charities | Tennessee | Tennessee ||| S. Thomas Anderson | March 24, 2017 ||| DOS | June 1, 2017 ||| DOS | Medicaid | State | seven years | States | the Equal Protection Clause | U.S. ||| June 2, 2017 | Refugee Rights Coalition | the Nashville Intentional Center for Empowerment ||| the General Assembly | DOS ||| March 19, 2018 | Anderson | DOS ||| 329 | 597 | 2018 | 1386845 ||| The General Assembly of Tennessee | Tennessee |||  ||| Anderson | first | Court ||| The General Assembly of Tennessee ||| Medicaid | Tennessee ||| the Medicaid Act ||| Anderson | the General Assembly of Tennessee | the Spending Clause | Tenth Amendment ||| Congress ||| Congress |||  ||| Tennessee ||| State | over four decades | Medicaid | Medicaid ||| the General Assembly of Tennessee | the Refugee Act | 1980 ||| May 10, 2018 | the Sixth Circuit | #18-5478 | the March 19, 2018 ||| July 24th, 2019 | the United States Court of Appeals | the Sixth Circuit | the General Assembly | 931 | 499 | 2019 | 3310332 ||| The Sixth Circuit | the General Assembly ||| the General Assembly |||  ||| the General Assembly | Tennessee ||| October 24, 2019 [SUMMARY] This lawsuit, filed by the General Assembly of Tennessee "General Assembly," a state senator, and state representative on their own behalf and on additionally on the behalf of the state of Tennessee, challenged the U.S. Department of State's (DOS) ability to use state funds to resettle refugees within the United States through the Refugee Act ("the Act") and the Office of Refugee Resettlement ("ORR") within the Department of Health and Human Services ("HHS"). On March 13, 2017, the General Assembly Tennessee filed a complaint in the U.S. District Court for the Western District of Tennessee seeking declaratory and injunctive relief, claiming that provisions of the Refugee Resettlement Act ("the Act") and Refugee Medical Assistance Program violated the Spending Clause and the Tenth Amendment through enacting and implementing certain statutes that require states to provide Medicaid coverage to eligible refugees. 

The General Assembly argued that the intent behind the Act was to avoid taxing states for what was ultimately a federal effort. Since the Act's passage in 1980, the General Assembly of Tennessee alleged that the burden on states to fund the program had increased. Moreover, the complaint argued, the state was further burdened by a requirement to cover medical costs for refugees until the state of Tennessee itself determines that a refugee is ineligible for the state Medicaid program. The state of Tennessee withdrew its participation from the refugee resettlement program in 2007. The complaint argued that the federal government nevertheless "coerced the state to continue funding" the program by threatening to withdraw federal Medicaid funding, which would amount to a 20% loss of its budget. The complaint further asserted that in establishing a private agency, Catholic Charities of Tennessee, to assume control and of the program in the state, "the federal government nullified the decision of the people of Tennessee to withdraw from an ostensibly voluntary federal program and thereby commandeered state funds to support a federal initiative."

The case was reassigned to Judge S. Thomas Anderson on March 24, 2017.

DOS moved to dismiss the case on June 1, 2017. DOS argued that "the refugee-coverage provision does not compel States to expend Medicaid funds for refugees; it conserves State funds by limiting to seven years the obligation the States would otherwise incur, under the Equal Protection Clause, to provide coverage to refugees on the same terms as they do U.S. citizens." 

Meanwhile, on June 2, 2017, the Tennessee Immigrant and Refugee Rights Coalition, Bridge Refugees Services, and the Nashville Intentional Center for Empowerment moved to intervene as defendants. Both the General Assembly and DOS filed responses in opposition to that motion to intervene. 

On March 19, 2018, Judge Anderson granted DOS's motion to dismiss for lack of standing on the alleged injury. 329 F.Supp.3d 597, 2018 WL 1386845. The General Assembly of Tennessee failed to establish that it has the authority on behalf of the state of Tennessee. The court also denied the intervenors' motions as moot. In his opinion, Judge Anderson held, first, that the Court lacked subject-matter jurisdiction over the case. The General Assembly of Tennessee, specifically its legislators, legislature, and Attorney General, lacked standing. The claim was not ripe because the federal government had not yet denied Medicaid funds to Tennessee and no such enforcement was imminent. Further, the Medicaid Act, which required an administrative process followed by appellate court review, precluded the claim from review in a district court.

Next, Judge Anderson held that the General Assembly of Tennessee had failed to state a claim for relief under the Spending Clause or Tenth Amendment. Congress had broad powers over immigration and naturalization, including refugees' eligibility for participation in federal benefits programs. Congress had, thus, acted within its authority to set funding conditions for the States in the relevant statutes. These conditions were neither coercive nor new. The federal government had not threatened to deny funding to Tennessee. The State had, for over four decades, accepted federal Medicaid funds on the condition that it had to cover lawfully-present noncitizens, so the requirement to provide state funding for refugees in exchange for federal Medicaid funds was not a new condition. Nor should the General Assembly of Tennessee be surprised by recent fluctuations in the number of admitted refugees -- a recurring situation that the Refugee Act of 1980 anticipates.

On May 10, 2018, the plaintiffs filed an appeal to the Sixth Circuit, docket #18-5478, regarding the March 19, 2018 judgement dismissing the case and denying the motion to intervene as moot.

On July 24th, 2019, the United States Court of Appeals for the Sixth Circuit affirmed the lower court’s decision stating that the General Assembly was without subject-matter jurisdiction, 931 F.3d 499, 2019 WL 3310332. The Sixth Circuit held that the General Assembly had not identified an injury that it suffered, such as disruption of the legislative process, a usurpation of its authority, or nullification of anything it has done. The lower court's decision that the General Assembly was without standing to bring a case was affirmed on the basis that an alleged injury was insufficient. Therefore, the individual legislators' standing was also denied. Finally, the General Assembly did not have the authority to bring a suit in the name of the state of Tennessee. 

The case was closed October 24, 2019.