Brief amicus curiae of National Taxpayers Union Foundation, Missouri v. Yellen, No. 22-352 (U.S.) (November 14, 2022)

Summary

A brief of the National Taxpayers Union Foundation as amicus curiae in support of the petitioner in State of Missouri v. Janet L. Yellen, Secretary of the Treasury, et al., No. 22-352, on petition for a writ of certiorari to the United States Court of Appeals for the Eighth Circuit, dated November 14, 2022. The table of contents lists two argument sections: that States have standing to protect their sovereign interests, and that the ARPA provision inhibits core state action. The brief argues that the ARPA provision forces people of common intelligence to guess at its meaning and states that Missouri demonstrated harm. It concludes by asking the Court to grant the petition for a writ of certiorari.

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                       No. 22-352


                           IN THE
     Supreme Court of the United States
                    __________________

                  STATE OF MISSOURI,
                                                 Petitioner,
                               v.


 JANET L. YELLEN, in her official capacity as Secretary
               of the Treasury; et al.,
                                         Respondents.
                    __________________________


On Petition for Writ of Certiorari to the United
States Court of Appeals for the Eighth Circuit
                    __________________

  BRIEF OF NATIONAL TAXPAYERS UNION
     FOUNDATION AS AMICUS CURIAE
       IN SUPPORT OF PETITIONER
                    __________________

                                  JOSEPH D. HENCHMAN
                                    Counsel of Record
                                  TYLER MARTINEZ
                                  NATIONAL TAXPAYERS
                                     UNION FOUNDATION
                                  122 C Street N.W. #700
                                  Washington, DC 20001
                                  jbh@ntu.org
                                  (703) 683-5700
November 14, 2022
                                    i


                   TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICUS CURIAE ............................ 1
SUMMARY OF THE ARGUMENT ........................... 2
ARGUMENT ............................................................... 3
   I.   STATES HAVE STANDING TO PROTECT
          THEIR SOVEREIGN INTERESTS. ............ 5
   II. THE ARPA PROVISION INHIBITS CORE
        STATE ACTION. ........................................ 11
CONCLUSION.......................................................... 14
                                    ii


                TABLE OF AUTHORITIES

Cases

Babbitt v. Farm Workers,
 442 U.S. 289 (1979) ............................................... 11

Connally v. Gen. Const. Co.,
  269 U.S. 385 (1926) ............................................... 10

Dep’t of Com. v. N.Y.,
  588 U.S. ___, 139 S. Ct. 2551 (2019) ..................... 15

Flast v. Cohen,
  392 U.S. 83 (1968) ................................................... 7

Ga. v. Tenn. Copper Co.,
 206 U.S. 230 (1907) ................................................. 7

Grayned v. City of Rockford,
  408 U.S. 104 (1972) ............................................... 10

Jordan v. De George,
  341 U.S. 223 (1951) ............................................... 11

Lujan v. Defenders of Wildlife,
  504 U.S. 555 (1992) ............................................. 8, 9

Mass. v. Env’t’l Prot. Agency,
 549 U.S. 497 (2007) ............................................. 7, 8

Mass. v. Mellon,
 262 U.S. 447 (1923) ........................................... 7, 16

Nat’l Fed’n of Indep. Bus. v. Sebelius,
 567 U.S. 519 (2012) ............................................... 16
                                    iii


Neb. v. Wyo.,
 515 U.S. 1 (1995) ..................................................... 7

Pennhurst State School and Hospital v. Haldeman,
  451 U.S. 1 (1981) ............................................. 12, 17

S. Carolina v. Baker,
  485 U.S. 505 (1988) ............................................... 17

S. Dakota v. Dole,
  483 U.S. 203 (1987) ............................................... 17

Sessions v. Dimaya,
  584 U.S. ___, 138 S. Ct. 1204 (2018) ............... 10, 11

Susan B. Anthony List v. Driehaus,
  573 U.S. 149 (2014) ............................................... 11

United States v. Williams,
 553 U.S. 285 (2008) ............................................... 10

Warth v. Seldin,
 422 U.S. 490 (1975) ............................................... 14

Whitmore v. Ark.,
 495 U.S. 149 (1990) ................................................. 9

Whole Woman’s Health v. Jackson,
 595 U.S. ___, 142 S. Ct. 522 (2021) ....................... 14

Statutes

42 U.S.C. § 802(c)(2)(A) .......................................... 3, 4

42 U.S.C. § 802(e)........................................................ 4
                                        iv


Other Authorities

Andrew Lautz, LATEST: Biden Student Debt
 Cancelation Could Cost Taxpayers Around $400
 Billion, NTUF (Aug. 25, 2022)
 https://www.ntu.org/foundation/detail/latest-biden-
 student-debt-cancelation-could-cost-taxpayers-
 around-400-billion ................................................. 10

Corey Turner, A look inside the legal battle to stop
  Biden's student loan relief, NPR (Sept. 30, 2022)
  https://www.npr.org/2022/09/30/1126083883/bidens
  -plan-to-cancel-some-student-debt-turns-into-a-
  legal-fight............................................................... 11

Joe Bishop-Henchman, Six Lawsuits Filed to
  Challenge ARPA Ban on State Tax Cuts, NTUF
  (June 3, 2021)
  https://www.ntu.org/library/doclib/2021/06/Six-
  Lawsuits-Filed-to-Challenge-ARPA-Ban-on-State-
  Tax-Cuts.pdf ............................................................ 6

National Association of State Budget Officers, The
 Fiscal Survey of States Fall 2020,
 https://www.nasbo.org/reports-data/fiscal-survey-
 of-states ................................................................... 3

THE FEDERALIST 80 (Hamilton) (McLean ed.)
 https://avalon.law.yale.edu/18th_century/fed80.asp
 .............................................................................. 6, 7

The White House, FACT SHEET: President Biden
  Announces Student Loan Relief for Borrowers Who
  Need It Most (Aug. 24, 2022)
  https://www.whitehouse.gov/briefing-
                                     v


   room/statements-releases/2022/08/24/fact-sheet-
   president-biden-announces-student-loan-relief-for-
   borrowers-who-need-it-most/ ................................ 10

Travis Nix, NTUF Files New Brief in ARPA Case
  Defending State’s Ability to Provide Tax Cuts,
  NTUF (Oct. 31, 2022)
  https://www.ntu.org/foundation/detail/ntuf-files-
  new-brief-in-arpa-case-defending-states-ability-to-
  provide-tax-cuts ....................................................... 6
                                 1


          INTEREST OF AMICUS CURIAE1

     National Taxpayers Union Foundation (NTUF)
provides crucial, impactful research that shows
Americans how taxes, government spending, and
regulations affect them. NTUF’s Taxpayer Defense
Center advocates for taxpayers in the courts,
producing scholarly analyses and engaging in
litigation upholding taxpayers’ rights, challenging
administrative overreach by tax authorities, and
guarding against unconstitutional burdens on
interstate commerce.
    Because Amicus has written extensively on the
issues involved in this case, because this Court’s
decision may be looked to as authority, and because
any decision will significantly impact taxpayers and
tax administration, Amicus has an institutional
interest in this Court’s ruling.




    1 Pursuant to Supreme Court Rule 37, all parties were timely

notified and consented to the filing of this brief. Counsel for Amici
represents that none of the parties or their counsel, nor any other
person or entity other than Amici or their counsel, made a
monetary contribution intended to fund the preparation or
submission of this brief.
                           2


        SUMMARY OF THE ARGUMENT

    At the eleventh hour of negotiating the American
Rescue Plan Act (ARPA), the $1.9 trillion COVID-
related spending package passed in 2021, a provision
was quietly inserted that ostensibly bars states from
using the state aid included in the bill to “directly or
indirectly” offset revenue reductions from tax cuts.
Few in Congress appeared to understand at the time
that this relatively obscure provision would kick off a
bevy of lawsuits launched by states alleging that the
law infringes on their rightful power to set tax policies
for their state.
   This incoherent provision requires guessing at its
meaning and inhibits the ability of states to set their
own tax and fiscal policies for fear of violating the
provision. Missouri, like many states, challenged this
intrusion into their sovereignty. Some states, like
Arizona, could move forward in their challenge on the
merits. But the Eighth Circuit, splitting with the
Ninth Circuit and numerous district courts, held for
the first time that a state’s challenge to an alleged
unconstitutional federal spending condition was
barred for standing.
    This Court has held in other contexts that states
do have standing to protect their sovereign interest,
and it is vitally important to do so here. Missouri’s
plight is one of many recent ultra vires actions by the
administrative state, yet gamesmanship of standing is
preventing juridical resolution of these constitutional
challenges.
   To be sure, Missouri, and all the states, have
suffered injury under ARPA. Treasury has not
                                3


disclaimed enforcement of the provision in general or
the “indirectly” clause in particular. States are
recovering from the Covid shutdowns and are
transitioning to new budget realities in the face of
rising inflation and other economic challenges. But
they cannot use all their options—especially tax
cuts—to adapt to the new reality so long as the
constitutionality of the ARPA provision remains in
doubt. For the states faced a grim choice in 2021:
either take billions of dollars in emergency aid or
maintain their flexibility in the recovery. Missouri
brings viable constitutional claims that should be
resolved in federal court.
                        ARGUMENT

   On March 11, 2021, President Biden signed into
law the American Rescue Plan Act of 2021 (ARPA),
providing massive federal aid to state and local
governments during the Covid-19 pandemic.2 But
APRA Subtitle M, Section 9901, also amends 42
U.S.C. § 802(c)(2)(A) to read:
       In general.—A State or territory shall
       not use the funds provided under this
       section or transferred pursuant to
       section 603(c)(4) to either directly or

    2 ARPA provides $195 billion in aid to state governments and

$130 billion in aid to local governments. The state portion
amounts to 22 percent of all states’ annual general fund budgets
($892.9 billion in Fiscal 2021) and 9 percent of all states’ total
fund budgets ($2.26 trillion); the combined state and local aid
amounts to 36 percent of general fund budgets and 14 percent of
all funds budgets. See National Association of State Budget
Officers, The Fiscal Survey of States Fall 2020 at 13,
https://www.nasbo.org/reports-data/fiscal-survey-of-states.
                           4


      indirectly offset a reduction in the net tax
      revenue of such State or territory
      resulting from a change in law,
      regulation,        or       administrative
      interpretation during the covered period
      that reduces any tax (by providing for a
      reduction in a rate, a rebate, a deduction,
      a credit, or otherwise) or delays the
      imposition of any tax or tax increase.
42 U.S.C. § 802(c)(2)(A). States which violate the
provision “shall be required to repay to the Secretary
an amount equal to the amount of funds used in
violation” calculated as the “lesser of (1) the amount of
the applicable reduction to net tax revenue
attributable to such violation; and (2) the amount of
funds received by such State or territory pursuant to
a payment made under this section or a transfer made
[to local governments].” 42 U.S.C. § 802(e).
    The provision is incoherent, such that an honest
person (or state government) attempting to abide by
its terms is necessarily guessing at its meaning. This
has resulted in paralyzing state legislative action for
fear of violating the provision, undermining ARPA’s
purpose of action to provide pandemic relief. This
chilling effect of the ARPA provision, coupled with the
lack of legislative history and the limitations of any
future Treasury guidance, means one of two things:
either the provision is so capable of multiple meanings
that it is void for vagueness, or is an exercise of such
great power by Congress as to deprive states of
independent action on their tax policies for five years.
   The broad sweep of the term “indirectly,” coupled
with the inherent fungibility of money in state
                            5


budgets, means that any state that accepts ARPA aid
(and the funds are of such size that no state will be to
explain why its citizens must take on the federal debt
to pay for ARPA but say no to their share of the
allocations) is effectively surrendering the ability to
cut taxes. Because the former result violates the Due
Process Clause and the latter result violates the Tenth
Amendment, a court should hold the ARPA provision
to be unconstitutional.
    Missouri challenged ARPA’s Hobson’s Choice. But
the Eighth Circuit held the state lacked standing, part
of a disturbing trend of shutting the courthouse door
to challenges of broad statutes and incoherent or non-
existent regulatory guidance. It also produced an
illogical and incoherent Circuit split: Arizona may
bring its challenge, but Missouri cannot, simply by
happenstance of which Circuit they sit in. Of course,
states are harmed—they must either choose to forgo
billions of dollars in federal aid during a crisis or cede
their sovereignty over their own budgets. This case
presents an opportunity for this Court to state what it
has always held: that a state asserting harm from an
allegedly unconstitutional federal spending condition
will be heard on the merits.

I.   STATES HAVE STANDING TO PROTECT
     THEIR SOVEREIGN INTERESTS.
    Multiple states immediately filed suit to challenge
the tax limits provision in ARPA, and National
Taxpayers Union Foundation closely tracked and
offered amicus curiae analysis in each case. See, e.g.,
Joe Bishop-Henchman, Six Lawsuits Filed to
Challenge ARPA Ban on State Tax Cuts, NTUF (June
                                6


3, 2021) .3; Travis Nix, NTUF Files New Brief in ARPA
Case Defending State’s Ability to Provide Tax Cuts,
NTUF (Oct. 31, 2022).4 Without taxpayer standing,
only the states can protect the interests of their
citizens in challenging this provision. See Mass. v.
Mellon, 262 U.S. 447, 487 (1923) (disallowing
taxpayer standing); cf. Flast v. Cohen, 392 U.S. 83, 85
(1968) (limited taxpayer standing to challenge
violations of the Establishment Clause).
    This Court has long held states have standing to
protect their sovereign (or sometimes described as
“quasi-sovereign”) interests. That is because “[w]ell
before the creation of the modern administrative
state, we recognized that States are not normal
litigants for the purposes of invoking federal
jurisdiction.” Mass. v. Env’t’l Prot. Agency, 549 U.S.
497, 518 (2007) ((discussing and applying Ga. v. Tenn.
Copper Co., 206 U.S. 230, 237 (1907)); cf. Neb. v. Wyo.,
515 U.S. 1, 19 (1995) (recognizing Wyoming’s standing
to challenge a federal water law decree).
   The Founders understood that the federal courts
would need to resolve such cases. In The Federalist 80
(McLean ed.) , Alexander Hamilton wrote that federal
judicial authority “ought to extend to” several types of
cases: first, “to all those which arise out of the laws of
the United States”; second, “to all those which concern
the execution of the provisions expressly contained in
the articles of Union;” and third, “to all those in which


    3 https://www.ntu.org/library/doclib/2021/06/Six-Lawsuits-

Filed-to-Challenge-ARPA-Ban-on-State-Tax-Cuts.pdf.
   4 https://www.ntu.org/foundation/detail/ntuf-files-new-brief-

in-arpa-case-defending-states-ability-to-provide-tax-cuts.
                              7


the United States are a party.”5 Applying the rubric of
The Federalist 80, ARPA is a law of the United States,
presents important Tenth Amendment questions, and
the federal officials in charge of enforcing ARPA are
properly parties. The Founders would therefore likely
be very comfortable with the federal courts hearing
the ARPA challenges for resolution of the important
constitutional questions.
    This Court in Massachusetts v. EPA hung much of
its standing analysis based on specific Congressional
authorization of such suits in the environmental laws.
See Mass., 549 U.S. at 518. But just last term this
Court noted that “there can be ‘little question’ that” a
“rule does injure the States,” when “they are ‘the
object of” its requirement.” W. Virginia v. Env’t’l Prot.
Agency, 597 U.S. ___, 142 S. Ct. 2587, 2606 (2022)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
561–62 (1992)). Just so here: ARPA directly regulates
the permissible activities of the states and so each
state has injury-in-fact to protect their sovereignty.
    The Eighth Circuit incorrectly focused on this
Court’s decision in Lujan to reject standing in this
case. Lujan summarized Article III standing as “the
‘Cases’ and ‘Controversies’ that are of the justiciable…
‘serv[ing] to identify those disputes which are
appropriately resolved through the judicial process.’”
Lujan, 504 U.S. at 560 (quoting Whitmore v. Ark., 495
U.S. 149, 155 (1990)) (bracket in Lujan). But it’s
important to note how attenuated the Lujan litigant’s
injuries were. They claimed “the lack of consultation
with respect to certain funded activities abroad


   5 https://avalon.law.yale.edu/18th_century/fed80.asp
                           8


‘increas[ed] the rate of extinction of endangered and
threatened species.’” Id. at 562. All the Lujan
challengers had was a “some day” intent to revisit Sri
Lanka to see endangered species. See id. at 564. And
even then, the ability for a federal court to redress the
injury was attenuated, since it had to do with
disagreeing on federal environmental policy rather
than a direct injury. In other words, the Lujan
litigants had a general grievance about the
government, not direct harm. See id. at 573-74.
    By contrast, Missouri—along with all 50 states—
have injuries traceable to a federal law mandating
they either (depending on how one reads a vague
statute) give up flexibility in tax policy or pass on
billions of dollars in emergency aid. The executive
branch, through Secretary Yellen, responds that the
states’ feared broad reading of the provision is not how
they will enforce it, but future Treasury Secretaries
may decide differently and the statute permits
retrospective clawing back of past funds. The
Secretary’s response that she reads the statute’s scope
differently is a merits argument, not a basis for
preventing federal courts from being the arbiters of
the scope of the ARPA provision.
    The ARPA provision forces people “of common
intelligence [to] necessarily guess at its meaning and
differ as to its application,” which thereby “violates
the first essential of due process of law.” Connally v.
Gen. Const. Co., 269 U.S. 385, 391 (1926). The law
neither enumerates the practices that are required or
prohibited, nor details the procedures to be followed
by those responsible for enforcing the provision. See,
e.g., United States v. Williams, 553 U.S. 285, 304
(2008). As a result, the statute deprives ordinary
                           9


people of the “fair notice of the conduct a statute
prescribes” and fails “to guard[] against arbitrary or
discriminatory law enforcement.” Sessions v. Dimaya,
584 U.S. ___, 138 S. Ct. 1204, 1212 (2018); see also
Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972) (“A vague law impermissibly delegates basic
policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis.”).
   Refraining from an activity to avoid the legal
consequences that a statute would impose for
engaging in it constitutes a sufficient injury to give a
party standing to challenge that statute. This Court
has held “that a plaintiff satisfies the injury-in-fact
requirement where he alleges ‘an intention to engage
in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute,
and there exists a credible threat of prosecution
thereunder.’” Susan B. Anthony List v. Driehaus, 573
U.S. 149, 159 (2014) (quoting Babbitt v. Farm
Workers, 442 U.S. 289, 298 (1979)). All a plaintiff need
only be subject to a law and under threat of
enforcement. Id. at 158. No “actual arrest,
prosecution, or other enforcement action” is needed for
a preenforcement challenge. Id. (collecting cases).
    Judicial resolution of this case is not only good
policy, it is a key part of our constitutional order.
Invalidating vague laws upholds the Due Process
Clause and upholds the separation of powers. See, e.g.,
Sessions, 138 S. Ct. at 1228 (Gorsuch, J., concurring
in the judgment), citing Jordan v. De George, 341 U.S.
223, 242 (1951) (Jackson, J., dissenting) (“Under the
Constitution, the adoption of new laws restricting
liberty is supposed to be a hard business, the product
of an open and public debate among a large and
                              10


diverse number of elected representatives. Allowing
the legislature to hand off the job of lawmaking risks
substituting this design for one where legislation is
made easy, with a mere handful of unelected judges
and prosecutors free to “condem[n] all that [they]
personally disapprove and for no better reason than
[they] disapprove it.”). See also Pennhurst State
School and Hospital v. Haldeman, 451 U.S. 1, 17
(1981) (“Accordingly, if Congress intends to impose a
condition on the grant of federal moneys, it must do so
unambiguously.”).
   ARPA is a temporary, but monumental, shift in the
balance between federal and state power and
Missouri’s request that the federal courts review the
statute’s constitutionality is proper. Missouri’s
predicament is just another in a long line of actions by
the executive branch to try to make its actions
unreviewable. For example, President Biden used
executive authority to forgive a large portion of federal
student loans at great cost to taxpayers. See The
White House, FACT SHEET: President Biden
Announces Student Loan Relief for Borrowers Who
Need It Most (Aug. 24, 2022)6; Andrew Lautz,
LATEST: Biden Student Debt Cancelation Could Cost
Taxpayers Around $400 Billion, NTUF (Aug. 25,
2022).7 Yet the administration actively modified the
program’s parameters to defeat standing. See Corey

   6 https://www.whitehouse.gov/briefing-room/statements-

releases/2022/08/24/fact-sheet-president-biden-announces-
student-loan-relief-for-borrowers-who-need-it-most/.
   7 https://www.ntu.org/foundation/detail/latest-biden-

student-debt-cancelation-could-cost-taxpayers-around-400-
billion.
                             11


Turner, A look inside the legal battle to stop Biden's
student loan relief, NPR (Sept. 30, 2022)8 (“Neither the
White House nor the Department of Education had
previously said borrowers would have the opportunity
to opt out of debt relief.”). Similar tough questions
about standing also arose in state actions as well. See,
e.g., Whole Woman’s Health v. Jackson, 595 U.S. ___,
142 S. Ct. 522 (2021).
    This Court should take Missouri’s case as a chance
to clarify the doctrine on standing, at least as applied
to invasions of state sovereignty by the federal
government. ARPA’s reach is severe and inhibiting
core state action on setting tax and fiscal policy. The
sooner the federal courts resolve the constitutional
questions, the better.

II. THE ARPA PROVISION INHIBITS CORE
    STATE ACTION.
    States who took ARPA funds now face harm from
a not-disclaimed Treasury Department enforcement
of a statute that they consider to be unconstitutional.
In evaluating standing, the Court should assume
arguendo these allegations to be true to determine if
Missouri has demonstrated a concrete and
particularized injury. See, e.g., Warth v. Seldin, 422
U.S. 490, 501 (1975) (“For purposes of ruling on a
motion to dismiss for want of standing, both the trial
and reviewing courts must accept as true all material
allegations of the complaint, and must construe the
complaint in favor of the complaining party.”).


   8   https://www.npr.org/2022/09/30/1126083883/bidens-plan-
to-cancel-some-student-debt-turns-into-a-legal-fight
                           12


   Under Treasury’s framework adopted by
regulation, each state, including Missouri, must now
provide evidence in the form of a report to the
Treasury Department that the tax cuts were “paid for”
by other than federal funds. If Treasury is
unpersuaded, the federal government will recoup the
funds. In contemplating any tax changes, these states
must now consider this pending federal intervention
and the lack of clarity as to its scope, and this in turn
has had a chilling effect in deterring support for state
tax cuts or reducing their size. Taxpayers deserve
better.
   It is a real risk that the Treasury Department,
under the current Secretary or a future one, will
enforce the provision against Missouri. Without
judicial relief, the state faces a choice of potential
recoupment or avoiding taking certain tax policy
actions. States are making this choice now, and are
consequently being harmed now.
    This Court recently held that a threatened loss of
federal funds is “a sufficiently concrete and imminent
injury to satisfy Article III.” Dep’t of Com. v. N.Y., 588
U.S. ___, 139 S. Ct. 2551, 2565 (2019). In the one state
challenge to a federal spending program that was
dismissed on standing grounds, the challenge was to
the constitutionality of the spending program itself on
behalf of the citizens of the state, and not a challenge
to a condition Congress placed on the grant of funds to
the state. See Mellon, 262 U.S. at 485 (denying
standing to Massachusetts but also stating “[w]e need
not go so far as to say that a state may never intervene
by suit to protect its citizens against any form of
enforcement of unconstitutional acts of Congress; but
                           13


we are clear that the right to do so does not arise
here.”).
    In past cases involving state allegations of
unconstitutional conditions, not even dissenting
justices have suggested a lack of standing as a basis
to dismiss the action. Indeed, the dissenters in the
Affordable Care Act case specifically rejected a
standing-based argument as unsound. See Nat’l Fed’n
of Indep. Bus. v. Sebelius, 567 U.S. 519, 696-97 (2012)
(Scalia, J., dissenting) (holding that declining to hear
the case on standing grounds “would be particularly
destructive of sound government [because i]t would
take years, perhaps decades, for each of its provisions
to be adjudicated separately—and for some of them
(those simply expending federal funds) no one may
have separate standing. The Federal Government, the
States, and private parties ought to know at once
whether the entire legislation fails.”). See also id. at
589 (Ginsburg, J., concurring in part, concurring in
the judgment in part, and dissenting in part)
(rejecting the state challenge to the federal statute on
grounds other than standing). And the dissenters in
South Dakota v. Dole also recognized the harms to
states when Congress regulates state activity. S.
Dakota v. Dole, 483 U.S. 203, 212 (1987) (Brennan, J.,
dissenting) (dissenting on the ground that the 21st
Amendment reserves to the states the power to set
alcohol policy and that a condition on a federal grant
abridges that right); Id. (O’Connor, J., dissenting)
(dissenting on the ground that drinking age is not
reasonably related to transportation policy). Even
when states lose on the merits, it is plain they had
standing to bring their claims. See, e.g., S. Carolina v.
Baker, 485 U.S. 505 (1988) (upholding a federal
                          14


statute of taxing state bonds with no justice raising
standing as an issue).
   Congressional conditions on state use of federal
funds are not insulated from judicial review. Indeed,
whether a condition is legitimate or not “rests on
whether the State voluntarily and knowingly accepts
the terms of the ‘contract,’” which is judicially
cognizable. Pennhurst, 451 U.S. at 17. Missouri must
accept the term of the contract for the condition to be
valid, and the state is here before this Court saying it
does not. Missouri demonstrated harm.

                   CONCLUSION
    For the foregoing reasons, Amicus respectfully
requests that this Court grant the petition for a writ
of certiorari.
                          Respectfully submitted,
                          JOSEPH D. HENCHMAN
                            Counsel of Record
                          TYLER MARTINEZ
                          NATIONAL TAXPAYERS
                             UNION FOUNDATION
                          122 C Street N.W.#700
                          Washington, DC 20001
                          jbh@ntu.org
                          (703) 683-5700
November 14, 2022


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