Minnesota purposefully chose to bring the case in the district court in Washington, D.C., which provides an important advantage relative to other venues. In most circuits, a Touhy denial gets deferential review to the feds, and even if you win, it’s usually just a remand that lets the agency restate its denial more artfully. But D.C. follows the minority rule, in essence treating an APA claim according to ordinary analysis for granting subpoenas.
It’s the third claim in the complaint that gets closest to the heart of what this case is really about. It’s a direct claim under the Tenth Amendment to the Constitution, which effectuates the full sovereignty of the states in our federalist system. In essence, Minnesota is arguing, with good reason, that DOJ is giving it no respect and trying to foil the state’s critical sovereign responsibility to investigate and prosecute a serious crime within its borders.
But while the Tenth Amendment incorporates the right principle here, it has no real berth in the Supreme Court’s decisions. The court has vindicated states’ right under the Tenth Amendment when the feds are trying to make them do something, however small, but not, as here, when the states in the name of sovereignty are seeking action from the feds. The doctrine hasn’t caught up with the principle. This case may force it to.
