Motion for Leave to File Brief of Amici Curiae — Commonwealth of Kentucky v. Yellen (Doc. 28)

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Motion for Leave to File Brief of Amici Curiae, filed July 12, 2021 as Doc. 28 in Commonwealth of Kentucky and State of Tennessee v. Janet Yellen, et al., No. 3:21-cv-00017-GFVT, U.S. District Court for the Eastern District of Kentucky. The Chamber of Commerce of the United States of America and the National Federation of Independent Business Small Business Legal Center request leave to file a brief amici curiae in support of the plaintiff States' motion for summary judgment (Dkt. No. 25), and the motion states that Plaintiffs and Defendants consent. It states that the amici are concerned that the tax mandate in the American Rescue Plan Act will prevent States from exercising their sovereign authority to tailor and implement their own tax policies. The motion bears s/Paul D. Clement and is dated July 12, 2021.

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                   UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF KENTUCKY
                 CENTRAL DIVISION AT FRANKFORT

 COMMONWEALTH OF KENTUCKY AND )
 STATE OF TENNESSEE,                    )
                                        )
              Plaintiffs,               )
                                        )
              v.                        )       No. 3:21-cv-00017-GFVT
                                        )
 JANET YELLEN, in her official capacity )
 as Secretary of the Treasury; RICHARD )
 K. DELMAR, in his official capacity as )
 acting inspector general of the )
 Department of the Treasury; and U.S. )
 DEPARTMENT OF THE TREASURY,            )
                                        )
              Defendants.               )
                                        )

    MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE
 CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA
   AND NATIONAL FEDERATION OF INDEPENDENT BUSINESS
  SMALL BUSINESS LEGAL CENTER SUPPORTING PLAINTIFFS’
            MOTION FOR SUMMARY JUDGMENT
      Pursuant to Rule 7.1 of the Local Rules of the U.S. District Court for the

Eastern District of Kentucky, the Chamber of Commerce of the United States of

America and the National Federation of Independent Business Small Business Legal

Center (together, “amici”) request leave to file a brief amici curiae in support of the

plaintiff States’ motion for summary judgment (Dkt. No. 25).            Plaintiffs and

Defendants consent to this motion.



                                          1
      The Chamber of Commerce of the United States of America (the “Chamber”)

is the world’s largest business federation. It represents approximately 300,000

members and indirectly represents the interests of more than 3 million companies

and professional organizations of every size, in every industry sector, and from every

region of the country. An important function of the Chamber is to represent the

interests of its members in matters before Congress, the Executive Branch, and the

courts. The National Federation of Independent Business (“NFIB”) is the Nation’s

leading small business association, representing members in Washington, D.C., and

all 50 state capitals. Founded in 1943 as a nonprofit, nonpartisan organization,

NFIB’s mission is to promote and protect the rights of its members to own, operate,

and grow their businesses. The NFIB Small Business Legal Center is a nonprofit,

public-interest law firm established to provide legal resources and be the voice for

small businesses in the Nation’s courts through representation on issues of public

interest affecting small businesses.

      To fulfill their role as a voice for the business and small business communities,

the Chamber and Legal Center regularly file amicus curiae briefs in cases that will

impact their interests, and they have recently done so in litigation involving the same

issue presented by Kentucky’s motion for summary judgment. See, e.g., Br. of Amici

Curiae Chamber of Commerce of the United States of Am. & NFIB Small Bus.

Legal Center, Ohio v. Yellen, No. 1:21-cv-181 (S.D. Ohio Apr. 9, 2021).


                                          2
      Amici and their members have a strong interest in this case, as they are

concerned that the tax mandate in the American Rescue Plan Act will prevent States

from exercising their sovereign authority to tailor and implement their own tax

policies, including those directly affecting businesses. Many States have recently

passed legislation that promote economic recovery by easing tax burdens on

businesses of all kinds, including, especially, small businesses harmed by the

COVID-19 pandemic.        These policies and others may be stymied by the tax

mandate’s prohibition on the use of federal funds to offset any decrease in a State’s

tax revenue. Because the implications of the tax mandate for American businesses

are severe, amici seek to represent the interests of their members in this Court with

the attached brief. Amici believe that the analysis presented in their brief provides

important context on the lack of constitutional authority for the tax mandate, as well

as the expected practical effects of this provision on businesses across the Nation.

      For the foregoing reasons, amici respectfully request that this Court grant

leave for the filing of the accompanying amici curiae brief.

                                              Respectfully submitted,
                                              s/Paul D. Clement
                                              PAUL D. CLEMENT
                                              ERIN E. MURPHY
                                              KIRKLAND & ELLIS LLP
                                              1301 Pennsylvania Avenue NW
                                              Washington, DC 20004
                                              (202) 389-5000
                                              paul.clement@kirkland.com
July 12, 2021
                                          3
                          CERTIFICATE OF SERVICE
      I hereby certify that on July 12, 2021, I electronically filed the foregoing with

the Clerk of the Court for the United States District Court for the Eastern District of

Kentucky by using the CM/ECF system. I certify that all participants in this case

are registered CM/ECF users and that service will be accomplished by the CM/ECF

system.

      July 12, 2021

                                                     s/Paul D. Clement
                                                     Paul D. Clement


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