United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 15, 2016 Decided July 1, 2016

No. 15-5309

STATE OF WEST VIRGINIA, EX REL. PATRICK MORRISEY,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN

SERVICES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01287)

Elbert Lin, Solicitor General, Office of the Attorney

General for the State of West Virginia, argued the cause for

appellant. With him on the briefs were Patrick J. Morrisey,

Attorney General, and Julie Marie Blake, Assistant Attorney

General.

Lindsey Powell, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief were

Benjamin C. Mizer, Principal Deputy Assistant Attorney

General, and Alisa B. Klein and Mark B. Stern, Attorneys.

Before: KAVANAUGH and WILKINS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: This is rather an

unusual case. West Virginia has sued to challenge the

President’s determination not to enforce certain controversial

provisions of the Affordable Care Act for a transitional period. 

That decision, implemented by a letter from the Secretary of the

Department of Health and Human Services, left the

responsibility to enforce or not to enforce these provisions to the

States, and West Virginia objects to being put in that position. 

We conclude that West Virginia, not having suffered an injuryin-fact, lacks standing.

I.

The Act, as is well known, mandated minimum coverage

requirements for all health insurance plans offered in the

individual market.1

 And it has been common in national health

care law to employ a dual federal-state enforcement

mechanism.2 Typically the States have the initial responsibility

to enforce the law, but if the States decline or fail to enforce, the

federal government is a backup enforcer. That approach was

followed in the Affordable Care Act provisions. See 42 U.S.C.

§ 300gg-22(a)(1).

1

Among other rules, policies are limited in what can be factored

into price variation, must be extended regardless of certain traditional

barriers such as medical history and health status, and may not

discriminate on several bases traditionally used to tailor plans to

individual consumers. See generally 42 U.S.C. § 300gg–300gg-6,

300gg-8. 

2

See generally U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 500

(1993). The Act primarily amended the Public Health Service Act.
3

Insurance companies responded quickly to the new

requirement. Millions of cancellation notices were sent out in

the fall of 2013, warning policyholders their plans would be

illegal once the new regulation took effect. All hell broke loose

as policies were cancelled, leading to Congressional promises to

modify the law to prevent cancellations.

The President acted, allegedly, to pre-empt Congress. He

announced the federal government would hold off on enforcing

the statutory requirements. Accordingly, HHS sent a letter to

the States announcing a “transitional policy,” allowing health

insurers with certain conditions3

 to continue policies that would

be outlawed under the statute for a period of a year (later

extended for another three years).

That left the States holding the bag. They had to decide

whether to enforce or not to enforce the very conditions that the

federal government determined to abandon for the transitional

period. West Virginia initially decided to enforce, but after

HHS extended the transitional period, West Virginia opted to

decline to enforce the mandates.

The State brought suit for declaratory and injunctive relief. 

It argued that the new policy violates the plain language of the

Act, which mandates that the Secretary “shall” enforce the

requirements, when States do not. While there may be room for

case-by-case enforcement discretion, the State claimed, HHS

was not at liberty to decline wholesale enforcement of the

3

Insurers were required to make disclosures to policyholders

about the noncompliance of their plans, as well as make information

available for enrollment in another, compliant plan, should the holder

so choose. 
4

provisions.4

 Moreover, the State claimed the new policy

violated the APA because it amounted to a substantive and

binding rule that was issued without the required notice-andcomment. 

West Virginia also brought two constitutional claims. It

contended that the federal non-enforcement policy unlawfully

delegated away federal executive authority. And it argued that

the policy violated the Tenth Amendment by foisting upon

States the final and determinative decision as to whether the

Act’s market requirements would be enforced within the State

itself. This, the State alleged, blurred the lines of political

accountability identified as crucial in previous cases such as

Printz v. United States, 521 U.S. 898 (1997), and New York v.

United States, 505 U.S. 144 (1992). 

Perhaps the most peculiar aspect of the case is the preferred

remedy sought. West Virginia seeks a declaratory judgment that

the Administration’s actions are illegal, but not “vacatur” of the

Secretary’s letter, apparently to induce the Administration to

negotiate a statutory fix from Congress. Only if that failed

would equitable relief be sought.

The district court concluded West Virginia lacked standing

because it had not suffered an injury-in-fact, and this appeal

followed.

4

A similar argument was levied against Administration

immigration policy. See Texas v. United States, 809 F.3d 134 (5th Cir.

2015), cert. granted, 136 S. Ct. 906 (U.S. Jan. 19, 2016) (No. 15-674).

Unlike the States in the Texas case, however, the State of West

Virginia has not argued (presumably because it cannot argue) that the

federal government’s decision not to enforce the statute has itself

imposed monetary costs on West Virginia. 
5

II.

Although Appellant challenges the federal government’s

decision to decline enforcement, West Virginia conceded at oral

argument that its claim of injury-in-fact is identical to that which

would exist if Congress had initially provided that only States

had authority to enforce the federal mandate. It is claimed that

if Congress were to do that, it would be illegally enlisting States

to bear the responsibility, politically, to decide whether to

enforce, or implement, a federal statute. In this case, instead, it

is the federal government’s enforcement decision that allegedly

created the same injury. But we simply do not understand why,

in either case, the grant of that discretion to the States creates an

injury-in-fact.

Appellant relies on the Supreme Court case holdings, in

Printz and New York, that federal statutes that compel States to

implement those statutes violate the Constitution. The closer

case, Printz, did hold that a statute requiring state legal officers

to conduct background checks on gun purchases was

unconstitutional (based primarily on implications from the

structure of the Constitution). But in their opinion, the majority

explained the key to its conclusion was that the State was

compelled to carry out a federal command. See Printz, 521 U.S.

at 924-35. The same was true in New York, which involved a

federal law that required States to either pass legislation dealing

with radioactive waste disposal, or to take title to and possession

of it. See New York, 505 U.S. at 151-54. Since in both cases the

States were compelled to act, no issue of standing was even

raised or discussed. 

Appellant would extend those cases to the proposition that

when the federal government abandons enforcement of a federal

statute, leaving States with the responsibility (or, for that matter,

Congress delegates discretion to implement a federal statute
6

directly to a state), that also is unconstitutional. Requiring the

States to assume the political responsibility of deciding whether

or not to implement a federal statute supposedly creates an

injury-in-fact. 

There is simply no support for this extraordinary claim. 

Although Appellant dresses up its argument as a breach of State

sovereignty in violation of the Tenth Amendment, its injury is

nothing more than the political discomfort in having the

responsibility to determine whether to enforce or not – and

thereby annoying some West Virginia citizens whatever way it

decides. And no court has ever recognized political discomfort

as an injury-in-fact. We do not doubt that West Virginia now

confronts different political terrain than it did before HHS

announced its new non-enforcement policy. But we do not think 

that represents cognizable legal injury. Increased political

accountability of this nature – greater likelihood of political

consequence in making a decision – is the kind of inherently

immeasurable harm that our standing doctrines have been

designed to screen out. Time, and time again, it has been

stressed that an injury must be “concrete.” See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992). 

Rather cleverly, West Virginia insists – which is generally

true – that we must assume the merits of its claim when

determining whether standing exists. See City of Waukesha v.

EPA, 320 F.3d 228, 235 (D.C. Cir. 2003). Therefore, we have

to acknowledge, according to Appellant, that the claimed

encroachment into the State’s sovereignty was an injury-in-fact. 

Still, even assuming that the administration’s action created a

theoretical breach of State sovereignty, West Virginia

nevertheless lacks a concrete injury-in-fact. The case is

analogous to those in which the government’s actions are

asserted to be unconstitutional but the plaintiff raises only a
7

“generally available grievance;” its injury is not particular. See

Lujan, 504 U.S. at 573-74. 

West Virginia’s secondary argument is that any party,

whether or not a governmental entity, has standing to challenge

a delegation from the government to carry out a governmental

responsibility. For that proposition, Appellant relies on Carter

v. Carter Coal Co., 298 U.S. 238 (1936). Without belaboring

the complexities of that case, it is sufficient to note that standing

was never discussed so, as is well known, the case is not a

precedent for standing. See, e.g., Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 63 n.4 (1989). In any event, Appellant’s

claim is an untenable stretch. For instance, if Congress gave the

D.C. Circuit authority, so long as we chose to use it, to set

electrical rates in the country as we pleased, we certainly would

not have standing to challenge that delegation as

unconstitutional. Nor would the Secretary of Energy, if given

the same authority.5

* * *

For the foregoing reasons, the district court is affirmed. 

So ordered.

5

The requested remedy – remand without vacatur, so as to goad

the President into working with Congress for a legislative solution –

further suggests that Appellant’s claim is basically a policy-based

dispute.