Brief/Memorandum in Support of Motion, State of Texas et al. v. Yellen, No. 2:21-cv-00079 (N.D. Tex.), Doc. 48 (November 8, 2021)
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Plaintiff States' brief in support of their combined reply in support of their motion for partial summary judgment and response to Defendants' motion for summary judgment, Document 48 in Case No. 2:21-cv-00079-Z, filed 11/08/21, in the U.S. District Court for the Northern District of Texas, Amarillo Division. The plaintiffs are the State of Texas, the State of Mississippi and the State of Louisiana, and the defendants include Janet Yellen as Secretary of the Treasury. The brief argues that the Tax Mandate in the American Rescue Plan Act of 2021 (ARPA) is unconstitutional in at least three respects: it is ambiguous, coercive and unrelated to ARPA's purpose. It also addresses jurisdiction, the equal sovereignty claim, a permanent injunction and declaratory judgment. The signature block names Jeffrey M. White.
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“Brief/Memorandum in Support of Motion, State of Texas et al. v. Yellen, No. 2:21-cv-00079 (N.D. Tex.), Doc. 48 (November 8, 2021).”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/brief-memorandum-in-support-of-motion-state-of-texas-et-al-v-yellen-no-61d9d7a1ae/
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Case 2:21-cv-00079-Z Document 48 Filed 11/08/21 Page 1 of 33 PageID 959
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
STATE OF TEXAS, STATE OF MISSISSIPPI, §
STATE OF LOUISIANA, §
§
Plaintiffs, §
§
v. § Case No. 2:21-cv-00079-Z
§
JANET YELLEN, in her official capacity as §
Secretary of the Treasury, et al., §
§
Defendants. §
PLAINTIFF STATES’ BRIEF IN SUPPORT OF THEIR
COMBINED REPLY IN SUPPORT OF THEIR
MOTION FOR PARTIAL SUMMARY JUDGMENT AND
RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Case 2:21-cv-00079-Z Document 48 Filed 11/08/21 Page 2 of 33 PageID 960
TABLE OF CONTENTS
Table of Contents ............................................................................................................................. i
Introduction ..................................................................................................................................... 1
Argument ........................................................................................................................................ 3
I. This Court Has Jurisdiction .....................................................................................3
A. The States have standing. ............................................................................ 3
B. The States’ claims are ripe. ......................................................................... 9
II. The States are Entitled to Summary Judgment on their Spending Clause
Claim ......................................................................................................................10
A. The Tax Mandate is ambiguous. ............................................................... 10
B. The Tax Mandate is coercive. ................................................................... 15
C. The Tax Mandate is not related to ARPA’s purpose. ............................... 18
III. Defendants are not Entitled to Summary Judgment on the States’ Equal
Sovereignty Claim .................................................................................................21
IV. The States are Entitled to the Relief they Seek ......................................................22
A. The States meet the requirements for a permanent injunction. ................. 22
B. The States meet the requirements for a declaratory judgment. ................. 23
Conclusion .................................................................................................................................... 24
i
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TABLE OF AUTHORITIES
Page(s)
Cases
Aetna Cas. & Sur. Co. v. Quarles,
92 F.2d 321 (4th Cir. 1937) .....................................................................................................23
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982) ...................................................................................................................7
Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,
576 U.S. 787 (2015) ...............................................................................................................3, 5
Arizona v. Yellen,
No. 2:21-cv-514, 2021 WL 3089103 (D. Ariz. July 22, 2021), appeal filed,
No. 21-16227 (9th Cir. July 26, 2021) ............................................................................. passim
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) ...........................................................................................................10, 12
Barnes v. E-Systems, Inc.,
501 U.S. 1301 (1991) .................................................................................................................5
In re Border Infrastructure Env’t Litig.,
284 F. Supp. 3d 1092 (S.D. Cal. 2018) ....................................................................................21
Buckley v. Valeo,
424 U.S. 1 (1976) .......................................................................................................................9
City & County of San Francisco v. Sessions,
349 F. Supp. 3d 924 (N.D. Cal. 2018), aff’d in part, vacated in part on other
grounds sub nom. City & County of San Francisco v. Barr, 965 F.3d 753 (9th
Cir. 2020) .................................................................................................................................20
Clinton v. City of N.Y.,
524 U.S. 417 (1998) ...................................................................................................................3
Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) .........................................................................................................3, 17
DM Arbor Ct., Ltd. v. City of Houston,
988 F.3d 215 (5th Cir. 2021) .....................................................................................................9
Gruver v. Louisiana Board of Supervisors for LSU,
959 F.3d 178 (5th Cir. 2020) ...................................................................................................16
ii
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Hyatt v. Thomas,
843 F.3d 172 (5th Cir. 2016) ...................................................................................................21
Jackson v. Birmingham Board of Education,
544 U.S. 167 (2005) .................................................................................................................11
Kentucky v. Yellen,
No. 3:21-cv-17, 2021 WL 4394249 (E.D. Ky. Sept. 24, 2021) ....................................... passim
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) ...................................................................................................................3
Maryland v. King,
567 U.S. 1301 (2012) ...............................................................................................................22
Massachusetts v. Mellon,
262 U.S. 447) (1923) .................................................................................................................6
Mayweathers v. Newland,
314 F.3d 1062 (9th Cir. 2002) ...................................................................................4, 5, 11, 15
Miller v. Tex. Tech Health Scis. Ctr.,
421 F.3d 342 (5th Cir. 2005) ...................................................................................................18
Missouri v. Yellen,
No. 4:21-cv-376, 2021 WL 1889867 (E.D. Mo. May 11, 2021), appeal filed,
No. 21-2118 (8th Cir. May 18, 2021) ................................................................................2, 5, 9
Murphy v. NCAA,
138 S. Ct. 1461 (2018) .............................................................................................................16
New Orleans Pub. Serv., Inc. v. Council of New Orleans,
833 F.2d 583 (5th Cir. 1987) .....................................................................................................9
New York v. DOJ,
951 F.3d 84 (2d Cir. 2020).......................................................................................................17
New York v. United States,
505 U.S. 144 (1992) .................................................................................................................16
NFIB v. Sebelius,
567 U.S. 519 (2012) .................................................................................................6, 16, 17, 18
Nw. Austin Mun. Util. Dist. v. Holder,
557 U.S. 193 (2009) .................................................................................................................21
Ohio v. Yellen,
No. 1:21-cv-181, 2021 WL 1903908 (S.D. Ohio May 12, 2021) (Ohio I) ................................4
iii
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Ohio v. Yellen,
No. 1:21-cv-181, 2021 WL 2712220 (S.D. Ohio July 1, 2021) (Ohio II),
appeal filed, No. 21-3787 (6th Cir. Sept. 3, 2021)........................................................... passim
Otto v. City of Boca Raton,
981 F.3d 854 (11th Cir. 2020) .................................................................................................22
Pederson v. LSU,
912 F Supp. 892 (M.D. La. 1996) ............................................................................................16
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S 1 (1981) ................................................................................................................10, 11
Printz v. United States,
521 U.S. 898 (1997) ...................................................................................................................4
Sherwin-Williams Co. v. Holmes County,
343 F.3d 383 (5th Cir. 2003) ...................................................................................................23
South Dakota v. Dole,
483 U.S. 203 (1987) .....................................................................................................17, 18, 20
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,
559 U.S. 662 (2010) ...................................................................................................................9
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) ...................................................................................................................8
Tex. Educ. Agency v. U.S. Dep’t of Educ.,
992 F.3d 350 (5th Cir. 2021) ........................................................................................... passim
Texas Educ. Agency v. United States Dept. of Educ.,
992 F.3d 350 (5th Cir. 2021) ...................................................................................................12
Texas Office of Pub. Util. Counsel v. FCC,
183 F.3d 393 (5th Cir. 1999) .................................................................................................5, 7
Texas v. United States,
787 F.3d 733 (5th Cir. 2015) .....................................................................................................5
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) .....................................................................................................5
Tidewater Inc. v. United States,
565 F.3d 299 (5th Cir. 2009) ...................................................................................................10
United States v. Davis,
226 F.3d 346 (5th Cir. 2000) ...................................................................................................12
iv
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United States v. Lipscomb,
299 F.3d 303 (5th Cir. 2002) ...................................................................................................20
United States v. Pickard,
100 F. Supp. 3d 981 (E.D. Cal. 2015)......................................................................................21
Virginia Department of Education v. Riley,
106 F.3d 559 (4th Cir. 1997) (per curiam)...............................................................................14
West Virginia v. U.S. Dep’t of Treas.,
No. 7:21-cv-465, 2021 WL 2952863 (N.D. Ala. July 14, 2021) ...................................2, 4, 8, 9
Wilton v. Seven Falls Co.,
515 U.S. 277 (1995) .................................................................................................................23
Consitutional Provisions
Tex. Const. art. III, § 49a ...............................................................................................................12
La. Const. art. VII, § 10 .................................................................................................................12
Statutes
42 U.S.C.
§ 802(a)(1) ...............................................................................................................................18
§ 802(c)(1) ...............................................................................................................................18
§ 802(c)(2)(A) ......................................................................................................................5, 13
§ 802(c)(2)(S)...........................................................................................................................14
§ 2000cc ...................................................................................................................................11
§ 2000cc-1 ................................................................................................................................11
Miss. Code Ann. § 27-103-125 ......................................................................................................12
Other Authorities
Affordable Care Act .......................................................................................................................17
American Rescue Plan Act of 2021 .................................................................................................1
Maternity Act of 1921 ......................................................................................................................6
Religious Land Use and Institutionalized Persons Act ..................................................................11
v
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INTRODUCTION
The Tax Mandate in the American Rescue Plan Act of 2021 (“ARPA”) is unconstitutional
in at least three respects. First, it is unconstitutionally ambiguous. The Tax Mandate prohibits state
tax cuts where ARPA funds are used to “directly or indirectly offset a reduction” in a State’s “net
tax revenue.” But nobody knows what an “indirect offset” of “net tax revenue” means, including
the Secretary of the Treasury. So the States cannot tell how they are allowed to cut taxes and how
they are not. In Defendants’ Combined Reply, 1 they attempt to explain what an indirect offset is
by recycling the same unhelpful example already addressed in the States’ Combined Response and
rejected by other courts. And Defendants do not even address net tax revenue.
Second, the Tax Mandate is also unconstitutionally coercive. Congress has offered massive
sums of federal funds to the States at a time when they need it the most. The COVID-19 pandemic
substantially increased the States’ costs of providing essential services and negatively affected
their general revenue. Arrangements between the States and the federal government are supposed
to be voluntary, but the States cannot seriously consider refusing ARPA funds in these
circumstances. In response, Defendants insist that Congress is not required to tell the States what
they will have to do if they accept federal funds. All Congress must do, Defendants say, is provide
notice that the acceptance of federal funds is “subject to terms and conditions.” That is simply not
how the Spending Clause works.
Third, the Tax Mandate is unconstitutionally unrelated to ARPA’s purpose. It does not
guarantee that the States spend ARPA funds on pandemic relief. It only guarantees that, having
properly spent APRA funds, state governments are forbidden from returning state funds back to
1
On naming conventions, the States will refer to the briefs filed on these issues as follows. ECF No. 19:
“Defendants’ Motion.” ECF No. 28: “States’ Combined Response.” ECF No. 46: “Defendants’ Combined Reply.”
1
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state taxpayers. That mandate is about the size of government, not economic recovery. Defendants
offer no substantive defense to this logical inconsistency except to conclude, without explanation
or example, that the Tax Mandate is reasonably related to the APRA’s purpose.
District courts have now issued decisions in multiple cases challenging the Tax Mandate.
Arizona v. Yellen, No. 2:21-cv-514, 2021 WL 3089103 (D. Ariz. July 22, 2021), appeal filed, No.
21-16227 (9th Cir. July 26, 2021); Missouri v. Yellen, No. 4:21-cv-376, 2021 WL 1889867 (E.D.
Mo. May 11, 2021), appeal filed, No. 21-2118 (8th Cir. May 18, 2021); Kentucky v. Yellen, No.
3:21-cv-17, 2021 WL 4394249 (E.D. Ky. Sept. 24, 2021); Ohio v. Yellen, No. 1:21-cv-181, 2021
WL 2712220 (S.D. Ohio July 1, 2021) (Ohio II), appeal filed, No. 21-3787 (6th Cir. Sept. 3, 2021);
West Virginia v. U.S. Dep’t of Treas., No. 7:21-cv-465, 2021 WL 2952863 (N.D. Ala. July 14,
2021). Three of the four most recent decisions hold that the sixteen States prosecuting those actions
had Article III standing. Kentucky, 2021 WL 4394249, at *3; West Virginia, 2021 WL 2952863,
at *6–7; Ohio II, 2021 WL 2712220, at *4, *6–7. And the court in Arizona indicated that it found
a lack of standing based on binding Ninth Circuit precedent, 2021 WL 3089103, at *3–4, which is
inconsistent with that in the Fifth Circuit. The court in Ohio II permanently enjoined enforcement
of the Tax Mandate because it is unconstitutionally ambiguous. 2021 WL 2712220, at *10–21.
And the court in Kentucky permanently enjoined its enforcement because it is unconstitutionally
coercive. 2021 WL 4394249, at *6–8.
There is no jurisdictional obstacle to this Court adjudicating this case. Texas, Mississippi,
and Louisiana have standing to bring this lawsuit against the restrictions on their power to cut taxes
when accepting ARPA funds. Their injury is straightforward: the abridgement of their sovereign
power to tax. The Tax Mandate is an ambiguous and coercive restriction on the States’ ability to
cut state taxes. Defendants offer no new defense to this fact, other than to reiterate their
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demonstrably false argument that the Tax Mandate does not prohibit tax cuts.
Because the Tax Mandate is unconstitutional, the Court should permanently enjoin it and
allow the States to exercise their full sovereignty.
ARGUMENT
I. This Court Has Jurisdiction
A. The States have standing.
The States have standing because they were injured when they were presented with an
unconstitutionally ambiguous and coercive condition, which is unrelated to ARPA’s purpose,
targets a subset of States, and forced them to choose between forgoing much needed funding or
surrendering their state sovereignty. States’ Combined Response at 7–10. The Tax Mandate also
has and will continue to inflict harm to their sovereign taxing authority. Id. at 10–13. And the
States also have pre-enforcement standing. Id. at 13–15.
1. The States were injured by ARPA’s passage.
The States were injured by Congress’s offer of federal funds on the condition that they
agree to unconstitutional conditions. As explained in prior briefing, the States suffered a
“constitutionally cognizable injury” when forced to choose between the “loss of federal funds” or
the invasion of their constitutional authority. See States’ Combined Response at 7–10; Koontz v.
St. Johns River Water Mgmt. Dist., 570 U.S. 595, 607 (2013); Clinton v. City of N.Y., 524 U.S.
417, 433 n.22 (1998); Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019); Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 800–04 (2015). Defendants
contend that an injury to state sovereignty cannot confer Article III standing, Defendants’
Combined Reply at 6–8, but the decisions in Ohio and West Virginia reject that argument, and so
should this Court. As the West Virginia court explained:
The Plaintiff States allege that the Defendants have already intruded into their
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sovereign authority to set their own tax policy. Their injury in fact is having to
choose between forgoing a benefit (federal funds) or accepting that benefit on
unconstitutional terms.
2021 WL 2952863, at *6; see also Ohio v. Yellen, No. 1:21-cv-181, 2021 WL 1903908, at *7 (S.D.
Ohio May 12, 2021) (Ohio I); Ohio II, 2021 WL 2712220, at *6–7.
Thus, the States suffered an injury in fact when Congress passed ARPA because they were
presented with an unconstitutionally ambiguous deal. In other words, it was Congress passing the
Act, not the States accepting the money, nor the Treasury eventually recouping the money, if that
ever happens, that violated the Constitution.
Defendants argue that the Tax Mandate does not injure the States because it does not bar
all tax cuts. Defendants’ Combined Reply at 6–7. But that is not responsive to Plaintiffs’ injury.
Defendants’ argument implies that Congress can abridge state sovereignty so long as it does not
go too far. But the sovereignty the States retained at the founding is “inviolable,” so any
infringement of that sovereignty necessarily confers standing to remedy it. Printz v. United States,
521 U.S. 898, 919 (1997) (quoting The Federalist No. 39, at 245 (James Madison) (Clinton
Rossiter ed., 1961)). Moreover, Defendants’ argument that ARPA bars some tax cuts but not others
is of little comfort to the States. Because ARPA is ambiguous, the States do not know which tax
cuts are barred. That creates present and future injury to state legislators and agencies that set state
tax policy. States’ Combined Response at 10–13. Binding Fifth Circuit precedent holds that States
may be held to conditions in spending provisions only when the conditions are clear as to what
they require. Tex. Educ. Agency v. U.S. Dep’t of Educ., 992 F.3d 350, 358–62 (5th Cir. 2021).
Defendants cite the Arizona and Missouri decisions, but they are of no help. In Arizona,
the court determined that the Ninth Circuit precedent of Mayweathers v. Newland, 314 F.3d 1062,
1067 (9th Cir. 2002), provides that States need only be on notice of conditions generally, and that
Congress is not required to specify the substance of those conditions. 2021 WL 3089103, at *3
4
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(citing Mayweathers, 314 F.3d at 1067). That interpretation of the Spending Clause is wrong, as
explained in Part II.A. Regardless, the Fifth Circuit has said otherwise. Tex. Educ. Agency, 992
F.3d at 361–62.
The Missouri decision is likewise unpersuasive. The court there understood ARPA to not
affect state sovereignty at all. 2021 WL 1889867, at *4 (“Missouri’s sovereign power to set its
own tax policy is not implicated by the ARPA. The Missouri legislature is free to propose and pass
tax cuts as it sees fit.”). “In short,” the court held, “State tax cuts are not proscribed by the ARPA.”
Id. But ARPA prohibits state tax cuts if they “directly or indirectly offset a reduction in . . . net tax
revenue.” 42 U.S.C. § 802(c)(2)(A). As explained in prior briefing, the Tax Mandate is
unconstitutionally ambiguous, making it impossible for the States to know when it may be
violated. States’ Combined Response at 22–28. That ambiguity, in turn, hangs over legislators and
state agencies when they contemplate changes to state tax policy. Id. at 10–13. This interference
in state tax policy is a cognizable harm. See Barnes v. E-Systems, Inc., 501 U.S. 1301, 1304 (1991)
(Scalia, J.); Texas Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999); Texas
v. United States, 809 F.3d 134, 153 (5th Cir. 2015); Texas v. United States, 787 F.3d 733, 749 (5th
Cir. 2015); Ariz. State Legislature, 576 U.S. at 800–04. The Missouri court’s decision is
unpersuasive because it, like Defendants here, failed to recognize the harm inflicted by the Tax
Mandate.
By contrast, the Kentucky court was appropriately sensitive to this federalism concern. “If
you think about it,” the court explained, “the coercion presented in the ARPA is exactly the kind
of intrusion into state sovereignty the Constitution prohibits. . . . Thus, where the federal
government unduly influences the States’ power to set their own tax policies, the federal
government oversteps its bounds.” 2021 WL 4394249, at *6.
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Defendants also erroneously contend that the 1923 Supreme Court decision Massachusetts
v. Mellon, 262 U.S. 447 (1923), “forecloses Plaintiffs’ sovereignty-as-injury argument.”
Defendants’ Combined Reply at 7. Mellon is best understood as holding that the federal
government may lawfully impose conditions on an offer of federal funds to the States. Mellon, 262
U.S. at 480–83. The statute at issue in Mellon was the Maternity Act of 1921, which offered federal
funds in exchange for compliance with directions from the newly created Children’s Bureau
concerning implementation of the Maternity Act. Those directions included rules on which nurses
were eligible to participate and which educational materials were to be used. Mellon, 262 U.S. at
478–80. In this respect, the program resembled cooperative social welfare programs we see today,
like Medicaid. The critical difference here is that ARPA asks States to surrender their sovereign
power to determine how much they tax their citizens. That is different in kind than a request by
the federal government to follow administrative rules in implementing a social program that it
designed. Mellon involved the latter and does not inform the decision here. See NFIB v. Sebelius,
567 U.S. 519, 579 (2012) (comparing the program in Mellon to Medicaid). The federal government
can “seek to purchase from the States their acquiescence in the exercise of the States’ sovereign
powers,” Ohio II, 2021 WL 2712220, at *11, but it cannot seek to abridge those powers altogether.
2. The States continue to be injured by ARPA.
The States also sustain present and future injury because the Tax Mandate’s ambiguity
clouds their decisionmaking when setting tax policy. States’ Combined Response at 10–13. The
threat of enforcement of the ambiguous Tax Mandate has multiple consequences. First, it affects
the state legislatures’ independence. As explained in Ohio II:
[The Tax Mandate] essentially means that Ohio’s legislature may be disinclined to
consider any rate reduction, as to any state tax, because the Secretary could interpret
that reduction as triggering a right to recoupment. Or, at the very least, Ohio
legislators will have incentives to minimize the size of any such reductions in hopes
of reducing the magnitude of any associated recoupment.
6
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2021 WL 2712220, at *8. The Kentucky court found that Tennessee and Kentucky had standing
on similar grounds. 2021 WL 4394249 at *3 (adopting the argument that the Tax Mandate
“proscrib[es] use of the funds for their preferred tax policies in the coming years”).
Second, the Tax Mandate casts doubt on the validity of recently implemented tax cuts.
Texas, Louisiana, and Mississippi have all accepted ARPA funds and have either passed legislation
cutting taxes or are actively considering such legislation. States’ Combined Response at 10–12;
see also, e.g., App.182–87 (amending Texas’s franchise tax); id. 190–93 (sales and use tax). The
States have a “sovereign interest in ‘the power to create and enforce a legal code,’” but ARPA
abridges that power and calls into question legislation like that listed above. Tex. Office of Pub.
Util. Council v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L. Snapp & Son, Inc. v.
Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).
Defendants contend that the States fail to “prove” that any recently enacted or future
legislation “will result in a net-tax-revenue reduction.” Defendants’ Combined Reply at 3–4. They
cite the Arizona decision for the proposition that the States fail to “claim to have directly or
indirectly used ARPA funds to supplement a reduction in its net income.” Id. at 3 (quoting Arizona,
2021 WL 3089103, at *5). But this assumes that the States know what the terms indirect offset and
net tax revenue mean. But they do not; and the Secretary has herself failed to explain them. See
States’ Combined Response at 23–28; infra Parts II.A.1 and II.A.2. So long as ARPA’s ambiguous
Tax Mandate continues, the States will be deterred from exercising their sovereign power to cut
taxes, and if they do cut taxes, they will face the uncertainty of whether those cuts will result in an
action to recoup ARPA funds. Those concrete injuries harm Plaintiffs now and thus confer Article
III standing to bring this lawsuit.
3. The States have pre-enforcement standing.
The States have standing to challenge the Tax Mandate before the Treasury attempts to
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recoup funds under ARPA. See States’ Combined Response at 13–15; Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 161–65 (2014). The States have considered and passed tax legislation and
will continue to do so. Those legislative acts could subject the States to recoupment by the Treasury
Department. And there is a substantial threat of enforcement because ARPA authorizes the
Secretary to attempt to recoup funds where the Tax Mandate has been violated, and the Secretary
has not “disavowed enforcement.” Driehaus, 573 U.S. at 165; see also States’ Combined Response
at 14.
Defendants raise three objections. First, they insist that the States fail to satisfy the first
two elements because ARPA does not proscribe tax cuts. Defendants’ Combined Reply at 3–4.
That is wrong, as explained above. See Part I.A.1. The States have demonstrated that they have a
constitutional interest in setting their tax policy, that the Tax Mandate abridges that sovereign right,
and that they have passed and will continue to pass legislation that may be prohibited by the Tax
Mandate. As the Kentucky and West Virginia courts recognized, it really is that simple. See 2021
WL 4394249, at *3; 2021 WL 2952863, at *7.
Second, Defendants contend that there is no constitutional interest at issue here because
the Tax Mandate “merely restricts a State’s ability to use federal funds distributed under the Rescue
Plan to offset a reduction in net tax revenue.” Defendants’ Combined Reply at 4. That is wrong.
As the States have pointed out, the Tax Mandate differs from provisions placing conditions on the
use of federal funds because it instead restricts the use of State revenue for tax cuts. States’
Combined Response at 30–31.
Third, Defendants argue that the States have not shown “a credible threat of enforcement”
because they have not passed or considered a tax cut that results in a reduction in “net tax revenue”
that is directly or indirectly offset by ARPA funds. Defendants’ Combined Reply at 4–5 (citing
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Missouri, 2021 WL 1889867, at *4; Arizona, 2021 WL 3089103, at *5). But that argument fails
because the Tax Mandate’s ambiguity prevents the States from understanding which tax cuts
subject them to enforcement, and which do not. More recent decisions persuasively reject
Defendants’ position. See Kentucky, 2021 WL 4394249, at *3; West Virginia, 2021 WL 2952863,
at *7.
B. The States’ claims are ripe.
The doctrine of prudential ripeness centers on “prudential reasons for refusing to exercise
jurisdiction.” DM Arbor Ct., Ltd. v. City of Houston, 988 F.3d 215, 218 (5th Cir. 2021) (quoting
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010)). Ripeness is primarily
concerned with “[p]roblems of prematurity and abstractness.” Id. at 218 n.1 (quoting Buckley v.
Valeo, 424 U.S. 1, 114 (1976)); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans,
833 F.2d 583, 586–87 (5th Cir. 1987).
The States’ claims are ripe for review because they are neither premature nor abstract;
Defendants acknowledge that “this case presents issues that are purely legal, which are amenable
to resolution without the need for discovery.” ECF No. 21 at 1.
Defendants attempt to tie the ripeness question to the standing issue. Defendants’
Combined Reply at 8. That is, they contend that the States’ claims are not ripe because they have
not been injured. But that is wrong, as explained above. The States suffered a concrete injury when
ARPA was passed and continue to suffer one. Nor can Defendants prevail by arguing, id., that the
States fail to show that the Tax Mandate is unconstitutional in all respects. First, an ambiguous
condition is still unconstitutionally ambiguous even if it may clearly apply in some subset of
circumstances. Ohio II, 2021 WL 2712220, at *8. And as to unconstitutional coercion, the States
have demonstrated that, especially in the context of the financial difficulties caused by the COVID-
19 pandemic, ARPA’s offer was effectively a gun to the head for Texas (12.5% of 2022 budget),
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Mississippi (31%), and Louisiana (7%). App.162, 168, 277.
II. The States are Entitled to Summary Judgment on their Spending Clause Claim
The Court should grant the States’ Motion for Partial Summary Judgment with respect to
their Spending Clause claim and deny the parallel portions of Defendants’ Motion for Summary
Judgment. See Tidewater Inc. v. United States, 565 F.3d 299, 302 (5th Cir. 2009).
A. The Tax Mandate is ambiguous.
The Tax Mandate is unconstitutional because it is ambiguous. When Congress offers the
States federal funds that are subject to conditions, it must explain those terms so that the States
“clearly understand” what they are obligated to do. Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291, 296 (2006). The Ohio court correctly recognized that ARPA fails to do so.
2021 WL 2712220, at *12; see also Kentucky, 2021 WL 4394249, at *7 (“Kentucky and Tennessee
may very well be correct about these alternative grounds.”).
As a preliminary matter, Defendants contend that Congress must “simply make clear that
acceptance of federal funds obligates States to comply with a condition” in order to comply with
the constitutional requirement that conditions be unambiguous. Defendants’ Combined Reply at 9
(emphasis added). That is a remarkable contention, with absolutely no limiting principle. Supreme
Court and Fifth Circuit precedent demonstrate that it is wrong. See Pennhurst State Sch. & Hosp.
v. Halderman, 451 U.S 1, 17 (1981); Tex. Educ. Agency, 992 F.3d at 361–62.
Pennhurst stands for the proposition that a federal spending program must unambiguously
state the applicable conditions, not merely acknowledge that they exist. States’ Combined
Response at 22–23. Legislation “enacted pursuant to the spending power is much in the nature of
a contract,” so the “legitimacy of Congress’s power to legislate under the spending power rests on
whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst, 451
U.S. at 17. “There can, of course, be no knowing acceptance if a State is unaware of the conditions
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or is unable to ascertain what is expected of it.” Id. In other words, Congress must clearly state
both the existence of any conditions and what those conditions require. Only then can the States
be “cognizant of the consequences of their participation.” Id. Defendants erase the second
requirement of Pennhurst.
The lengths to which Defendants go in stretching a number of Supreme Court and circuit
court decisions confirms their position’s futility. For instance, Defendants cite Jackson v.
Birmingham Board of Education, but that case merely clarified that for purposes of liability under
Title IX, entities that receive federal funds were on notice that intentional sex discrimination
included retaliation. 544 U.S. 167, 182–83 (2005). It did not hold that Congress could offer the
States federal money without putting them on notice of the terms of the conditions.
Similarly, Defendants would have the Court believe that Mayweathers v. Newland, 314
F.3d 1062 (9th Cir. 2002), stands for the proposition that Congress can impose a completely
“unpredictable” condition when it acts pursuant to the spending power. Defendants’ Combined
Reply at 10–11. Not so. Mayweathers dealt with the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), which prohibits entities receiving federal funds from
implementing a land-use or prison regulation that imposes a substantial burden on a person’s
religious exercise unless the entity can satisfy strict-scrutiny. See 314 F.3d at 1067; 42 U.S.C.
§§ 2000cc, 2000cc-1. Far from being an unknown condition, the strict-scrutiny framework was
widely familiar and sufficed to put participating States on notice of what acceptance of federal
funds entailed. Indeed, the Ninth Circuit acknowledged that RLUIPA followed “a long tradition”
of federal legislation based on similar legal principles. Mayweathers, 314 F.3d at 1067.
Despite Defendants’ attempts to stretch other decisions, their Spending Clause
interpretation is wrong. As explained in Ohio II, federal spending programs must put the States on
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“clear notice” of their obligations, else they are unconstitutional. 2021 WL 2712220, at *12
(quoting Arlington, 548 U.S. at 296). Their interpretation would allow Congress to enact a naked
“condition” that an agency could use to impose mandates that are nowhere set forth in the spending
condition itself, contrary to the Fifth Circuit’s recent ruling in Texas Educ. Agency v. United States
Dept. of Educ., 992 F.3d 350, 361–62 (5th Cir. 2021). If Defendants are right that Congress need
only specify the existence of a condition, it could offer the States federal funds without providing
any details on what those conditions are. Defendants, however, are wrong: The Spending Clause
requires Congress to specify the conditions it imposes on the acceptance of federal funds such that
the States “would clearly understand” what they are obligated to do. Arlington, 548 U.S. at 296.
The Tax Mandate fails to do so.
1. The Tax Mandate does not explain what an indirect offset means.
The first reason the Tax Mandate is ambiguous is that ARPA does not define the term
“indirectly offset” or explain the breadth of this provision. The States are required to balance their
budgets. Tex. Const. art. III, § 49a; Miss. Code Ann. § 27-103-125; La. Const. art. VII, § 10. And
because “money is fungible,” United States v. Davis, 226 F.3d 346, 357 (5th Cir. 2000), any
reduction in revenue due to a tax cut might be deemed by the Secretary to have been “indirectly
offset” by another source of revenue in a State’s budget, including the receipt of ARPA funds.
Falling back on their faulty interpretation of the Spending Clause, Defendants hardly
attempt to contest the Tax Mandate’s ambiguity on the merits. See Defendants’ Combined Reply
at 13–15. They offer no explanation as to what an indirect offset means. Instead, they recycle the
same two examples that ostensibly demonstrate the difference between a direct and indirect offset.
Id. at 13. But as the States have explained, these examples fail to clarify the Tax Mandate’s
ambiguity. States’ Combined Response at 25–27.
First, they do not make sense. As explained by the court in Ohio II, these examples “amount
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[] to two slightly different ways of saying the same thing, albeit swapping the order in which steps
2 and 3 are presented.” 2021 WL 2712220 at *14. In each, the hypothetical State accepted $2
billion in funds, cut $2 billion in taxes, and used the funds to fill the budgetary hole left by the tax
cut. As such, direct and indirect offsets seem to mean the same thing, while Defendants continue
to insist that they do not. As explained in Ohio II:
The problem, though, is that while offering identical examples, the Secretary insists
that there is a difference between the two terms, and believes that the examples
illustrate that difference. In other words, the Secretary’s briefing contends that the
term “indirect offset” conveys something different from the term “direct offset,”
yet cannot articulate what that difference is.
Id. Moreover, even if Defendants could offer a coherent example of an indirect offset, they still
“have not provided any definition” of that term, “let alone one that flows either from the statutory
language, or from the use of that term in the context of the statute more generally.” Id. at *15. For
this reason, Defendants fail to identify a principle that limits the Treasury Department’s ability to
label any tax cut as being indirectly offset by ARPA funds. See also id. (“Based on the Tax
Mandate’s language, the Secretary could deem essentially any reduction in the rate of any one or
more state taxes—even if other tax rates were increased—to be ‘a change in [tax] laws’ that results
in an ‘indirect[] offset [of] a reduction in [Ohio’s] net tax revenues.’” (quoting 42 U.S.C.
§ 802(c)(2)(A))).
Defendants have failed to explain what an indirect offset means. In fact, they appear to
concede that Congress did not choose its words carefully when it passed ARPA. They suggest that
a lower threshold of clarity should be applied “in the context of an emergency aid statute that
Congress enacted quickly.” Defendants’ Combined Reply at 14. But a statute is either
unambiguous or it is not. And here, it is not.
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2. The Tax Mandate does not explain what a reduction in net tax revenue
means.
The Tax Mandate is ambiguous for the additional reason that ARPA fails to explain what
a “reduction” in “net tax revenue” means. 42 U.S.C. § 802(c)(2)(S). That term “necessarily
assumes some baseline,” see States’ Combined Response at 27, but ARPA fails to provide a
“mechanism for determining whether a State’s net tax revenues are reduced or not.” Ohio II, 2021
WL 2712220, at *13 (cleaned up). The failure to define a baseline raises numerous issues. Is the
net revenue affected if the State cuts rates but revenues increase? Is the baseline based on expected
revenues or actual revenues? See id. (“In other words, when Ohio legislators enact a lower rate on
a given tax, they may do so based on a belief that actual tax collections will go up.”). These and
other questions remain unanswered. In fact, Defendants do not mention this issue at all in their
Combined Reply.
3. Regulations cannot cure the Tax Mandate’s ambiguity.
Nor can the Interim Final Rule (“IFR”) cure an unconstitutionally ambiguous statute.
Binding Fifth Circuit precedent provides that “regulations cannot provide the clarity” that the
Spending Clause requires in order for State acceptance of conditional federal funds to be
“knowing.” Tex. Educ. Agency, 992 F.3d at 361; see also States’ Combined Response at 28–29.
The en banc Fourth Circuit reached the same result in Virginia Department of Education v. Riley,
106 F.3d 559, 567 (4th Cir. 1997) (per curiam). “Relying on regulations to present [a] clear
condition,” the Fifth Circuit explained, “is an acknowledgement that Congress’s condition was not
unambiguous.” Tex. Educ. Agency, 992 F.3d at 361. Further, if Congress could delegate its
obligation to establish the conditions imposed on federal spending, it could “grant the Executive a
power of the purse,” which would be “inconsistent with the Constitution’s meticulous separation
of powers.” Id. at 362.
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The Tex. Educ. Agency decision is binding on this Court and is dispositive of the question
of whether the IFR cures ARPA’s ambiguity. Previously, Defendants pointed to the Arizona
decision, observing that it reached a contrary holding. See 2021 WL 3089103, at *3–4. But that
decision relies on the Ninth Circuit’s holding in Mayweathers, 314 F.3d 1062. As illustrated above,
the Fifth Circuit’s decision in Tex. Educ. Agency contradicts that decision’s holding that ambiguity
in the condition itself does not pose a constitutional problem. Thus, Mayweathers, and by extension
Arizona, are not the law of this Circuit, and cannot be relied on by this Court to inform its decision
on this issue.
Perhaps sensing the unstable ground, Defendants abandon their prior argument.
Defendants’ Combined Reply at 12. Instead of re-urging their previous theory, Defendants now
contend that “it is not necessary for the Court to consider” Tex. Educ. Agency because “agency
regulations have no bearing on the Spending Clause analysis.” Id. They tie this concession to the
false assertion that Congress need only specify the existence of conditions in order for State
acceptance of federal funds to be knowing and voluntary. But that interpretation is wrong, as
explained in Part II.A; see also Ohio II, 2021 WL 2712220, at *15–20; id. at *20 (“[T]he Tax
Mandate violates the Spending Clause the IFR notwithstanding.”).
B. The Tax Mandate is coercive.
The Tax Mandate also unconstitutionally coerces and commandeers States because it seeks
to control their taxation power—something Congress could not do on its own—by offering the
States pandemic-relief funds that they cannot seriously refuse. States’ Combined Response at 19–
22.
Defendants rightly note that the coercion and anticommandeering claims “should be
analyzed together.” Defendants’ Combined Reply at 16 n.2. That is so because ARPA seeks to
control state legislatures by coercing them into accepting Congress’s preferred taxation policy. But
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the federal government has no power “to issue direct orders” to state governments. Murphy v.
NCAA, 138 S. Ct. 1461, 1476 (2018); see also New York v. United 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.”). Defendants therefore violate both the
Tenth Amendment anticommandeering principle and the Spending Clause anti-coercion principle
because they seek to govern the States’ exercise of their sovereign powers.
Defendants argue at the outset that the coercion analysis does not apply to the Tax Mandate
because ARPA involves new federal funds, not preexisting ones. They contend that the recent
decision in Gruver v. Louisiana Board of Supervisors for LSU is “binding Fifth Circuit precedent,”
which holds that imposing “spending conditions on new funds, as opposed to preexisting funds,
does not ‘trigger[] the coercion question’ at all.” Defendants’ Combined Reply at 16 (quoting 959
F.3d 178, 183–84 (5th Cir. 2020)).
But the question presented in Gruver was whether the Supreme Court’s decision in NFIB
v. Sebelius was a sufficient basis to seek reconsideration of the Fifth Circuit’s decision in Pederson
v. LSU, 213 F.3d 858 (5th Cir. 2000), that States waive Eleventh Amendment immunity against
sex-discrimination lawsuits when they accept Title IX funds. The Fifth Circuit rejected LSU’s
position, explaining that (i) the existence of a condition that does not govern the use of funds does
not necessarily render a law coercive and (ii) Congress had not unlawfully surprised LSU with
post-acceptance conditions when it amended Title IX in 1986, fourteen years after it was originally
enacted into law. Gruver, 959 F.3d at 182–84. In fact, the Gruver court did not even discuss
spending conditions on new funds because that subject was not at issue there. Defendants are
wrong to represent that Gruver stands for the proposition that conditions placed on new federal
funds do not implicate the Spending Clause analysis at all.
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ARPA is indeed coercive. A federal act is coercive if it “pass[es] the point at which
‘pressure turns into compulsion.”’ NFIB, 567 U.S. at 580 (quoting South Dakota v. Dole, 483 U.S.
203, 211 (1987)). Congress can offer “mild encouragement,” but it cannot threaten. Id., 483 U.S.
at 211. It threatens when the intended impact “is so significant to the States’ overall operation as
to leave it with no choice but to agree.” New York v. DOJ, 951 F.3d 84, 115 (2d Cir. 2020). In
addition, Spending Clause scrutiny is “heightened” where, as here, Congress tries to “implement
federal policy it could not impose directly under its enumerated powers.” NFIB, 567 U.S. at 577–
78.
Defendants extend their erroneous argument to the merits of the coercion question and
insist that ARPA is not coercive because it is a new spending program and does not threaten
preexisting funds. Defendants’ Combined Reply at 17–18. They cite the Arizona decision as
supporting that argument. See 2021 WL 3089103, at *5. But their distinction is one of form, not
of substance. The key question is whether Congress’s offer “leaves the States with no real option
but to acquiesce,” not whether it is an alteration of a preexisting arrangement or the creation of a
new one. NFIB, 567 U.S. at 582. Both types of arrangements can be coercive.
Contrary to what Defendants would have the Court believe, Defendants’ Combined Reply
at 17–18, NFIB does not stand for the proposition that there are no limits on Congress’s power to
condition new federal spending programs. The central reason why the Affordable Care Act was
coercive is that the sum it threatened to revoke was so large—States’ entire Medicaid fund. See
NFIB, 567 U.S. at 580–85 (plurality); id. at 682–85 (joint dissent).
Here, Congress did not offer ARPA funds to encourage the States to participate in a new
federal program. It offered those funds to help the States cover expenses that they already have
because of pandemic. In that respect, Congress’s offer is all the more coercive because it was made
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at a time when Plaintiffs’ costs have increased and their general revenue has decreased. As the
court in Kentucky explained, “[n]ot only have the States been forced to combat the health
ramifications of the coronavirus, the pandemic has thrown many States and citizens into severe
economic hardship.” 2021 WL 4394249 at *5; see also ECF No. 31-1 at 14–17 (brief of the
Chamber of Commerce and National Federation of Independent Business Small Business Legal
Center).
Simply put, the States’ need for federal funds is far greater than usual, so their ability to
decline such an offer is far less than usual. In the context of the pandemic, “refusing to accede to
the conditions set out in the [ARPA] is not a realistic option.” NFIB, 567 U.S. at 681 (Scalia, J.,
dissenting). The fact that Plaintiffs desperately need new funds (instead of desperately needing to
maintain preexisting funds) makes no difference. See id. at 687 (“As the Federal Government sees
things, Congress is like the generous benefactor who offers $1 million with strings attached to 50
randomly selected individuals.”). The key question is whether the Tax Mandate is coercive. It is.
C. The Tax Mandate is not related to ARPA’s purpose.
Under Dole, conditions attached to federal funds must be “reasonably related to the purpose
of the expenditure to which they are attached.” Miller v. Tex. Tech Health Scis. Ctr., 421 F.3d 342,
348 & n.15 (5th Cir. 2005) (citing Dole, 483 U.S. at 207–08). The Tax Mandate fails that test and
is therefore unconstitutional for this additional reason. States’ Combined Response at 29–31.
ARPA’s stated purpose is to “mitigate the fiscal effects stemming from the public health
emergency caused by the pandemic. 42 U.S.C. § 802(a)(1). Defendants agree with this. See
Defendants’ Combined Reply at 19 (ARPA “help[s] States economically recover from the
pandemic in ways they otherwise could not.”). To further that goal, ARPA specifies four areas for
spending federal funds: households and business assistance, essential worker compensation,
replacement of lost government revenues, and infrastructure investment. See 42 U.S.C.
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§ 802(c)(1). Defendants insist that the Tax Mandate simply guarantees that States spend ARPA
funds in the permitted areas. Defendants’ Combined Reply at 19 (“[I]t merely specifies how States
may use the newly appropriated funds to ensure that they are used for the public-health and
economic recovery purpose of the Act.”). That explanation is illogical and does not stand up to the
counterexamples identified in the States’ Combined Response. States’ Combined Response at 29–
31.
As a matter of logic, the Tax Mandate does not guarantee that States use ARPA funds in
one of the four permitted areas because a State’s decision to spend federal funds in those areas is
independent of its other spending decisions. If a State spends its ARPA funds on pandemic-
recovery initiatives, its decision to cut taxes does not render those funds unspent. The Tax
Mandate’s actual effect is to compel government spending. States’ Combined Response at 30. It
does not prohibit the States from using federal funds for pandemic-recovery initiatives and using
the money they would have otherwise spent in those areas for totally unrelated purposes.
Defendants’ failure to engage with this simple example is telling.
Defendants also fail to respond to the States’ argument that the Tax Mandate inhibits
economic relief in some circumstances. The federal government itself recognizes that tax cuts can
promote economic recovery. See ARPA, Pub. L. No. 117-2, § 9621 (expanding the earned income
tax credit), § 9673 (exempting revitalization funds). But when the States want to give financial
relief to struggling businesses and families, Defendants flip their position and contend that those
initiatives are counter to the purposes of economic recovery. That is irrational.
Nor is the Tax Mandate analogous to provisions requiring the States to maintain state
spending in areas supplemented by federal funds. Defendants previously made that argument, see
Defendants’ Motion at 16–17, but they appear to abandon it now. The States previously explained
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that maintenance-of-effort provisions are substantively different than a bar on tax cuts and that
ARPA does not require maintenance of effort. States’ Combined Response at 30–31. Defendants
do not respond to those arguments. Instead, they stress the “reasonableness” standard, and assume
they have met it, without further elaboration. Defendants’ Combined Reply at 20 (quoting United
States v. Lipscomb, 299 F.3d 303, 322 & n.97 (5th Cir. 2002)).
Defendants’ final defense is to fall back on the limited nature of the precedent in this area
of the law. See Defendants’ Combined Reply at 20 (“Plaintiffs point to no case, and Defendants
are aware of none, in which a court has struck down a funding condition on relatedness grounds.”).
As a preliminary matter, that there may not be a case exactly on point is not responsive to the
States’ substantive argument that the Tax Mandate is unrelated to ARPA’s purpose. But in any
event, courts have held that federal spending programs violate the relatedness requirement. See,
e.g., City & County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 958–61 (N.D. Cal. 2018),
aff’d in part, vacated in part on other grounds sub nom. City & County of San Francisco v. Barr,
965 F.3d 753 (9th Cir. 2020). These cases are rare, but that is because statutes that impose
conditions totally unrelated to their purpose are rare.
All in all, Defendants offer no substantive defense to this aspect of the States’ Spending
Clause claim. And in truth, no defense could change the fact that the Tax Mandate does not ensure
that States spend ARPA funds on pandemic-recovery initiatives. The Court should enjoin
enforcement of the Tax Mandate because it is ambiguous and coercive. But the Court should also
hold that the Tax Mandate violates the Spending Clause for the additional reason that, under Dole,
it is unrelated to ARPA’s purpose.
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III. Defendants are not Entitled to Summary Judgment on the States’ Equal Sovereignty
Claim
The Court should deny summary judgment against the States’ equal sovereignty claim for
two reasons. First, Defendants fail to demonstrate the absence of a genuine dispute of material fact
that ARPA discriminates against the States. A court must deny summary judgment if there is a
dispute “over facts that might affect the outcome of the suit under the governing law.” Hyatt v.
Thomas, 843 F.3d 172, 177 (5th Cir. 2016). Although ARPA does not expressly differentiate
between the States, statutes that are “facially neutral” may be “easily manipulated.” Nw. Austin
Mun. Util. Dist. v. Holder, 557 U.S. 193, 198 (2009); see also States’ Combined Response at 16–
19. That is exactly what happened here.
There is a discrete category of States, including Texas, Mississippi, and Louisiana, that are
historically “much more likely to exercise their sovereign authority to decrease taxes and other
government revenues” than other States. ECF No. 1 ¶ 79. Further factual development will show
that Congress designed ARPA to discriminate against that category of States while remaining
neutral on its face. Defendants contend that “no factual development could assist the Court in
ruling on this issue,” Defendants’ Combined Reply at 21, but the opposite is true. The resolution
of this fact dispute would unquestionably “affect the outcome of the suit.” Hyatt, 843 F.3d at 177.
Nor can Defendants prevail by arguing that the equal-sovereignty analysis does not apply
to a facially neutral statute. Defendants’ Combined Reply at 20–21. At least two courts that have
addressed equal-sovereignty claims appear to contemplate that a facially neutral law could support
such a claim if supported by evidence of discriminatory purpose. See In re Border Infrastructure
Env’t Litig., 284 F. Supp. 3d 1092, 1144–45 (S.D. Cal. 2018); United States v. Pickard, 100 F.
Supp. 3d 981, 1011–12 (E.D. Cal. 2015). That is exactly the type of evidence that further factual
development will produce. Summary judgment is premature and should be denied.
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Second, Defendants do not address the States’ argument that ARPA’s disparate impact on
States that historically cut taxes is insufficiently related to its purpose of helping the States to
combat the pandemic. As explained in Part II.C, the Tax Mandate simply does not advance the
purpose of helping States recover from the pandemic. And in many cases, it would actually inhibit
that goal, denying States the opportunity to alleviate the financial burdens imposed by the
pandemic on their citizens and their businesses. Summary judgment should be denied on this basis
as well.
IV. The States are Entitled to the Relief they Seek
A. The States meet the requirements for a permanent injunction.
Defendants raise two unavailing objections to the States’ request for a permanent
injunction. First, they contend that the States are not suffering irreparable injury because the only
consequence of violating the Tax Mandate is that they may “have to repay money—the
quintessential example of harm that is not irreparable.” Defendants’ Combined Reply at 22. That
argument fails because it ignores the States’ ongoing sovereign injury. See Ohio II, 2021 WL
2712220, at *21 (“And in any event, such damages would do nothing to cure the irreparable harm
that Ohio is currently suffering.”); see also Kentucky, 2021 WL 4394249, at *7 (explaining that
“irreparable harm flows naturally from the constitutional violation”).
Second, Defendants argue that they will be irreparably harmed by a permanent injunction
and that the latter would disserve the public interest because the federal government “suffers a
form of irreparable injury” when its laws are enjoined. Defendants’ Combined Reply at 23 (quoting
Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers)). That would be a valid
concern if ARPA were constitutional—but it is not. Otto v. City of Boca Raton, 981 F.3d 854, 870
(11th Cir. 2020) (“[N]either the government nor the public has any legitimate interest in enforcing
an unconstitutional ordinance.”). As explained by the Kentucky court: “The public interest is
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safeguarded with a decision in favor of the Plaintiffs; the States’ ability to set their taxing policy
as a co-sovereign enhances, rather than threatens, individual liberty.” 2021 WL 4394249, at *7.
B. The States meet the requirements for a declaratory judgment.
Federal courts have “unique and substantial discretion in deciding whether to declare the
rights of litigants.” Sherwin-Williams Co. v. Holmes County, 343 F.3d 383, 389 (5th Cir. 2003)
(quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). The States seek a declaration that
“the Tax Mandate in § 9901 of the American Rescue Plan Act . . . is in excess of Congress’s Article
I power . . . violated the Tenth Amendment . . . and is thus unenforceable.” ECF No. 1 at 15. They
are entitled to that declaration because it will “serve a useful purpose in clarifying and settling the
legal relations at issue.” Sherwin-Williams Co., 343 F.3d at 390 n.2 (citing Aetna Cas. & Sur. Co.
v. Quarles, 92 F.2d 321, 325 (4th Cir. 1937)). Namely, such relief will clarify that the Tax Mandate
violates the Spending Clause and the Tenth Amendment, and that the remainder of the law will
remain in effect.
Defendants object to a declaratory judgment on two grounds. First, they say that ARPA
and the accompanying regulations provide “more than sufficient clarity” to understand the States’
legal obligations. Defendants’ Combined Reply at 24. That argument is nonresponsive to the
States’ requested remedy because it goes to the merits of whether the Tax Mandate is
unambiguous, not whether the Court should issue declaratory relief. And on the merits, as
explained in Part II.A, the Tax Mandate is unconstitutionally ambiguous.
Second, Defendants argue that a declaratory judgment should not issue because the
recoupment process offers an adequate “alternative remedy.” Defendants’ Combined Reply at 24.
But it does not. As the Kentucky court held, States “will endure hardship if forced to accept this
unconstitutional contract of adhesion that impedes on their sovereign powers.” 2021 WL 4394249,
at *7. That sovereign injury will persist until the Tax Mandate is declared unconstitutional and
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enjoined from operation. The States are entitled to those remedies.
CONCLUSION
The States respectfully request that the Court deny the Defendants’ Motion to Dismiss and
Motion for Summary Judgement, grant the States’ Motion for Partial Summary Judgment, impose
a permanent injunction, enter declaratory relief, and grant all other appropriate relief.
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Date: November 8, 2021 Respectfully submitted.
KEN PAXTON PATRICK K. SWEETEN
Attorney General of Texas Deputy Attorney General for Special Litigation
Tx. Bar No. 00798537
BRENT WEBSTER
First Assistant Attorney General WILLIAM T. THOMPSON
Deputy Chief, Special Litigation Unit
JUDD E. STONE II Tx. Bar No. 24088531
Solicitor General
Tx. Bar No. 24076720 /s/ Jeffrey M. White
JEFFREY M. WHITE
Special Counsel
Tx. Bar No. 24064380
RYAN D. WALTERS
Special Counsel
Tx. Bar No. 24105085
JACK B. DISORBO
Assistant Attorney General
Tx. Bar No. 24120804
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC-009)
Austin, Texas 78711-2548
Tel.: (512) 463-2100
Fax: (512) 457-4410
judd.stone@oag.texas.gov
will.thompson@oag.texas.gov
jeff.white@oag.texas.gov
ryan.walters@oag.texas.gov
jack.disorbo@oag.texas.gov
COUNSEL FOR PLAINTIFF STATE OF TEXAS
25
Case 2:21-cv-00079-Z Document 48 Filed 11/08/21 Page 32 of 33 PageID 990
LYNN FITCH
Attorney General of Mississippi
/s/ Justin L. Matheny
JUSTIN L. MATHENY
Deputy Solicitor General
MS Bar No. 100754
State of Mississippi
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205
Tel: (601) 359-3680
justin.matheny@ago.ms.gov
COUNSEL FOR THE STATE OF MISSISSIPPI
JEFF LANDRY
Attorney General
/s/ Elizabeth B. Murrill
ELIZABETH B. MURRILL*
Solicitor General
Office of the Attorney General
Louisiana Department of Justice
1885 N. Third Street
Baton Rouge, LA 70804
Tel: (205) 326-6085
murrille@ag.louisiana.gov
*Admitted Pro hac vice
COUNSEL FOR THE STATE OF LOUISIANA
26
Case 2:21-cv-00079-Z Document 48 Filed 11/08/21 Page 33 of 33 PageID 991
CERTIFICATE OF SERVICE
I certify that on November 8, 2021, a true and accurate copy of the foregoing document
was filed electronically (via CM/ECF), which automatically serves all counsel of record who are
registered to receive notices in this case.
/s/ Jeffrey M. White
Jeffrey M. White
27
File and source
- File
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- Size
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- SHA-256
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- Original
- storage.courtlistener.com