Motion for Permanent Injunction, State of West Virginia et al. v. U.S. Department of the Treasury, No. 7:21-cv-00465 (N.D. Ala.), Doc. 75 (July 29, 2021)
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Motion for Permanent Injunction and Declaratory Judgment in State of West Virginia, et al. v. United States Department of the Treasury, et al., Case No. 7:21-cv-00465-LSC, filed July 29, 2021. The Plaintiff States argue that the "Tax Mandate" in the American Rescue Plan Act of 2021 infringes their sovereignty under the Tenth Amendment and exceeds Congress' authority under the Spending Clause. They move for a final judgment permanently enjoining its enforcement against them and declaring it unlawful. The brief states that the Court has already found standing and ripeness, and says it focuses on the effect of the Interim Final Rule (none) and the relief sought. It cites approximately $1.9 trillion in ARPA relief, roughly $195.3 billion of it for the States.
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“Motion for Permanent Injunction, State of West Virginia et al. v. U.S. Department of the Treasury, No. 7:21-cv-00465 (N.D. Ala.), Doc. 75 (July 29, 2021).”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/motion-for-permanent-injunction-state-of-west-virginia-et-al-v-u-s-dep-828d23710d/
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Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 1 of 38 FILED
2021 Jul-29 PM 05:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
STATE OF WEST VIRGINIA, by and through
Patrick Morrisey, Attorney General of the State
of West Virginia; STATE OF ALABAMA, by
and through Steve Marshall, Attorney General of
the State of Alabama; STATE OF ARKANSAS,
by and through Leslie Rutledge, Attorney General
of the State of Arkansas; STATE OF ALASKA,
by and through Treg R. Taylor, Attorney General
of the State of Alaska; STATE OF FLORIDA, Case No. 7:21-cv-00465-LSC
by and through Ashley Moody, Attorney General
of the State of Florida; STATE OF IOWA;
STATE OF KANSAS, by and through Derek
Schmidt, Attorney General of the State of MOTION FOR PERMANENT
Kansas; STATE OF MONTANA, by and INJUNCTION AND
through Austin Knudsen, Attorney General of the DECLARATORY JUDGMENT
State of Montana; STATE OF NEW
HAMPSHIRE; STATE OF OKLAHOMA, by
and through Mike Hunter, Attorney General of
the State of Oklahoma; STATE OF SOUTH
CAROLINA, by and through Alan Wilson,
Attorney General of the State of South Carolina;
STATE OF SOUTH DAKOTA, by and through
Jason R. Ravnsborg, Attorney General of the
State of South Dakota; and STATE OF UTAH,
by and through Sean Reyes, Attorney General of
the State of Utah,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE
TREASURY;
JANET YELLEN, in her official capacity as the
Secretary of the United States Department of the
Treasury; and
RICHARD K. DELMAR, in his official
capacity as acting inspector general of the
Department of the Treasury,
Defendants.
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 2 of 38
MOTION FOR PERMANENT INJUNCTION
AND A DECLARATORY JUDGMENT
The “Tax Mandate” in the American Rescue Plan Act of 2021, see Pub. L. No.
117-2, § 9901, 135 Stat. 4 (enacting § 602(c)(2)(A) to the Social Security Act
(42 U.S.C. § 801 et seq.)), unconstitutionally infringes on the Plaintiff States’
sovereignty under the Tenth Amendment and exceeds Congress’ authority under the
Spending Clause. See U.S. Const. art. I, § 8, cl.1. Plaintiff States therefore move for
a final judgment permanently enjoining the Tax Mandate’s enforcement against them
and declaring the Tax Mandate unlawful.
Respectfully submitted:
/s/ Edmund G. LaCour Jr. /s/ Lindsay S. See
STEVE MARSHALL PATRICK MORRISEY
Alabama Attorney General West Virginia Attorney General
Edmund G. LaCour Jr. Lindsay S. See (pro hac vice)
Alabama Solicitor General West Virginia Solicitor General
James W. Davis David C. Tryon (pro hac vice)
A. Reid Harris Special Assistant to the
Assistant Attorneys General Attorney General
Office of the Alabama (Admitted in Ohio; practicing under
Attorney General supervision of W. Va. attorneys)
501 Washington Ave. Jessica A. Lee (pro hac vice)
P.O. Box 300152 Assistant Solicitor General
Montgomery, AL 36130 Office of the West Virginia
Tel: (334) 353-2196 Attorney General
edmund.lacour@alabamaAg.gov 1900 Kanawha Blvd. East
jim.davis@AlabamaAG.gov Building 1, Room E-26
reid.harris@AlabamaAG.gov Charleston, WV 25305
Counsel for State of Alabama Tel: (304) 558-2021
Lindsay.S.See@wvago.gov
Counsel for State of West Virginia
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 3 of 38
/s/ Nicholas Bronni
LESLIE RUTLEDGE
Arkansas Attorney General
Nicholas J. Bronni (pro hac vice)
Arkansas Solicitor General
Vincent M. Wagner (pro hac vice)
Deputy Solicitor General
Dylan L. Jacobs (pro hac vice)
Assistant Solicitor General
Office of the Arkansas
Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
Tel: (501) 682-6302
nicholas.bronni@arkansasag.gov
Counsel for State of Arkansas
[Additional counsel listed at end]
ii
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 4 of 38
TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
STATEMENT OF FACTS ........................................................................................3
ARGUMENT .............................................................................................................7
I. The Tax Mandate Is Unconstitutional .............................................................7
A. The Tax Mandate Violates the Spending Clause ....................................... 7
1. The Tax Mandate Is Coercive .............................................................17
a. The Interim Final Rule Cannot Cure An Unconstitutionally
Ambiguous Law ..............................................................................11
b. Congress Did Not Delegate Treasury the Authority to Cure
the Tax Mandate’s Ambiguity ........................................................13
c. The Interim Final Rule is Unconstitutionally Ambiguous .............15
2. The Tax Mandate Is Coercive .............................................................17
3. The Tax Mandate Is Unrelated to ARPA’s Purpose ..........................19
B. The Tax Mandate Violates the Tenth Amendment ..................................20
II. The Court Should Enjoin the Tax Mandate and Declare
It Unconstitutional .........................................................................................23
A. The Court Should Issue a Permanent Injunction .....................................23
B. The Court Should Award Declaratory Relief ..........................................24
CONCLUSION ........................................................................................................25
iii
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 5 of 38
TABLE OF AUTHORITIES
Cases
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) .............................................................................................10
Bank of Hamilton v. Lessee of Dudley,
27 U.S. 492 (1829) ........................................................................................ 12, 13
Benning v. Georgia,
391 F.3d 1299 (11th Cir. 2004) ..........................................................................8, 9
Bond v. United States,
564 U.S. 211 (2011) .............................................................................................12
Carey v. Throwe,
957 F.3d 468 (4th Cir. 2020), cert. denied, 141 S. Ct. 1054 (2021) ....................22
Cas. Indem. Exch. v. High Croft Enters., Inc.,
714 F. Supp. 1190 (S.D. Fla. 1989) ......................................................................24
Cty. of Santa Clara v. Trump,
250 F. Supp. 3d 497 (N.D. Cal. 2017)..................................................................11
eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388 (2006) .............................................................................................23
Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1 (1824) .......................................................................... 14, 23
Graham Cnty. Soil & Water Conservation Dist. v. United States,
545 U.S. 409 (2005) ...............................................................................................8
Gregory v. Ashcroft,
501 U.S. 452 (1991) .............................................................................................14
Gundy v. United States,
139 S. Ct. 2116 (2019)..........................................................................................13
iv
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Holder v. Humanitarian Law Project,
561 U.S. 1 (2010)....................................................................................................9
Hollis v. Itawamba Cty. Loans,
657 F.2d 746 (5th Cir. Unit A Sept. 1981) .................................................... 24, 25
Ivanhoe Irrigation Dist. v. McCracken,
357 U.S. 275 (1958) .............................................................................................19
King v. Burwell,
576 U.S. 473 (2015) .............................................................................................14
Marbury v. Madison,
1 Cranch 137 (1803) .............................................................................................12
Maryland Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270 (1941) .............................................................................................24
Med. Assur. Co. v. Hellman,
610 F.3d 371 (7th Cir. 2010) ................................................................................24
Montgomery v. Louisiana,
577 U.S. 190 (2016) .............................................................................................12
Murphy v. NCAA,
138 S. Ct. 1461 (2018)............................................................................. 12, 20, 21
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ...................................................................... 7, 16, 17, 18, 20
New York v. United States,
505 U.S. 144 (1992) ...................................................................................... 19, 22
Ohio v. Yellen, No.
1:21-CV-181, 2021 WL 2712220 (S.D. Ohio July 1, 2021) ............. 10, 13, 14, 15
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) .............................................................................................8, 11
v
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 7 of 38
Printz v. United States,
521 U.S. 898 (1997) .............................................................................................21
Scott v. Roberts,
612 F.3d 1279 (11th Cir. 2010) ............................................................................23
Seila Law LLC v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183 (2020)..........................................................................................12
South Dakota v. Dole,
483 U.S. 203 (1987) .........................................................................................8, 19
Tex. Educ. Agency v. U.S. Dep’t of Educ.,
992 F.3d 350 (5th Cir. 2021) ................................................................................11
United States v. Lopez,
514 U.S. 549 (1995) .............................................................................................12
Utility Air Regulatory Group v. EPA,
134 S. Ct. 2427 (2014)..........................................................................................14
Va. Dep’t of Educ. v. Riley,
106 F.3d 559 (4th Cir. 1997) ................................................................................11
Whitman v. Am. Trucking Associations,
531 U.S. 457 (2001) .............................................................................................11
Statutes
28 U.S.C. § 2201(a) .................................................................................................24
42 U.S.C. § 801 et seq. ............................................................................................... i
42 U.S.C. § 802 et seq................................................................................................2
42 U.S.C. § 802(b)(3)...............................................................................................17
42 U.S.C. § 802(b)(3)(A) ...........................................................................................3
42 U.S.C. § 802(c)(1)(A-D) .................................................................................3, 19
vi
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42 U.S.C. § 802(c)(1) ...............................................................................................19
42 U.S.C. § 802(c)(2)(A) ............................................................................ 3, 8, 9, 15
42 U.S.C. § 802(d)(1).................................................................................................7
42 U.S.C. § 802(d)(2).................................................................................................4
42 U.S.C. § 802(e) .....................................................................................................9
42 U.S.C. § 803 ........................................................................................................20
42 U.S.C. § 803(c) .....................................................................................................4
Federal Regulations
Coronavirus State and Local Fiscal Recovery Funds,
86 Fed. Reg. 26786 (May 17, 2021)........................................... 5, 6, 7, 15, 16, 22
Constitutional Provisions
U.S. Const. art. I, § 8, cl.1 .......................................................................................... i
Public Laws
Pub. L. No. 117-2, § 9621 ....................................................................................4, 20
Pub. L. No. 117-2, § 9673 ....................................................................................4, 20
Pub. L. No. 117-2, § 9901, 135 Stat. 4 ....................................................................... i
Pub. L. No. 117-2, 135 Stat. 4 ...................................................................................2
Other Authority
Alabama Department of Finance, Executive Budget Office,
State Receipts, https://budget.alabama.gov/state-receipts/ ...................................18
Ilya Somin, Making Federalism Great Again, 97 Tex. L. Rev. 1247 (2019) .........12
vii
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Nat’l Assoc. of State Budget Officers, 2020 State Expenditure Report, available at
https://perma.cc/62WG-B9LW ................................................................. 3, 18, 19
U.S. Department of Treasury, Allocation for States,
available at https://home.treasury.gov/system/files/136/fiscalrecoveryfunds
-statefunding1-508A.pdf ..................................................................................3, 19
viii
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INTRODUCTION
This Court has already determined that the Plaintiff States alleged facts
sufficient to establish standing and ripeness because they properly alleged several
different injuries under Article III: (1) they “were not offered a clear understanding
of the deal that Congress is offering” because of the Tax Mandate’s ambiguity; (2)
their sovereignty was intruded upon by “having to choose between forgoing a benefit
(federal funds) or accepting that benefit on unconstitutional terms”; and (3) there is
a credible threat of enforcement in the form of a recoupment action. Doc. 71 at 14-
20. Each of these holdings is supported by the facts—Congress passed ARPA, most
Plaintiff States have now accepted the terms of the agreement while others continue
to consider the ambiguous offer, and all Plaintiffs States are now compelled to
attempt to legislate in the shadow of a looming recoupment proceeding. Moreover,
the States have passed revenue-related laws during ARPA’s covered period, which
heightens the States’ needs for certainty over what the Tax Mandate means and
whether it is constitutional.1 Finally, States that have accepted ARPA funds must
meet intrusive reporting requirements to assist Treasury in its enforcement of the
unconstitutional Tax Mandate. The Plaintiff States have thus already suffered harm
from the Tax Mandate, and they continue to suffer harm that this Court can redress.
1
A list that includes some of these State laws is attached as Exhibit 1 to this motion.
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 11 of 38
Thus, before the Court are two straightforward merits questions: (1) whether
the Tax Mandate is unconstitutionally coercive, ambiguous, or unrelated to its stated
purpose in violation of the Spending Clause (it is), and (2) whether Congress has
commandeered State legislatures in violation of the Tenth Amendment (it has).
ARPA “offers” States exorbitant payoffs in exchange for their sovereignty, an offer
the States can’t refuse while they and their residents recover from an economic crisis
caused by a once-in-a-century pandemic. But the States have no way to understand
the terms of the deal that Congress offered. And the deal as understood (which
prohibits tax relief alone) is unrelated to ARPA’s stated purpose of promoting
economic recovery from the COVID-19 pandemic. Further, the Tax Mandate
intrudes on State sovereignty by dictating State tax policy, an outcome that blurs
responsibility and undermines political accountability. Thus, the Court should
declare the Tax Mandate unconstitutional and permanently enjoin its enforcement.
These issues have already been briefed at length, and Plaintiff States
incorporate that briefing and argument in full. (Docs. 21, 59.) Plaintiff States
succinctly re-state those arguments here and focus this brief on two new issues: (1)
the effect of the Department of Treasury’s Interim Final Rule (none), and (2) the
relief to which Plaintiff States are entitled at this stage of the litigation (a permanent
injunction and declaratory judgment).
2
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STATEMENT OF FACTS
On March 11, 2021, President Biden signed the American Rescue Plan Act of
2021 (“ARPA”), which appropriated approximately $1.9 trillion to provide relief to
address the economic impact of the COVID-19 pandemic. See Pub. L. No. 117-2,
135 Stat. 4 (codified at 42 U.S.C. § 802 et seq.). Out of the roughly $1.9 trillion that
ARPA allocates for pandemic relief, roughly $195.3 billion goes to the States. Id.
§ 802(b)(3)(A). For each State, these amounts represent a sizeable percentage of the
State’s annual revenue and expenditures.2
Congress specified that States must use ARPA funds to respond to the
economic effects of COVID-19 in one of four specific ways: (1) providing assistance
to “households, small businesses, and nonprofits” and “impacted industries such as
tourism, travel, and hospitality”; (2) responding “to workers performing essential
work during the COVID-19 public health emergency by providing premium pay to
eligible workers”; (3) making up for pandemic-related reductions in state
government revenue; and (4) paying for “necessary investments in water, sewer, or
broadband infrastructure.” 42 U.S.C. § 802(c)(1)(A-D). In addition to specifying
affirmative uses for the funds, Congress placed a special restriction on tax cuts.
Section 802(c)(2)(A)—the Tax Mandate—provides:
2
Compare Nat’l Assoc. of State Budget Officers, 2020 State Expenditure Report, p. 8 (Table 1),
available at https://perma.cc/62WG-B9LW, with U.S. Dep’t of Treasury, Allocation for States,
available at https://home.treasury.gov/system/files/136/fiscalrecoveryfunds-statefunding1-
508A.pdf (last visited July 29, 2021).
3
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(2) FURTHER RESTRICTION ON USE OF FUNDS.—
(A) 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 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.
The phrase “directly or indirectly offset” is not defined. Congress did not extend this
prohibition to cities, localities, or Tribal governments. See 42 U.S.C. § 803(c). And
in other sections of ARPA, Congress enacted federal tax relief. See, e.g., ARPA
§ 9621 (expanding earned income tax credit), § 9673 (exempting small business
revitalization funds).
Further, ARPA requires any State that receives funds to “provid[e] a detailed
accounting” to Defendants of “all modifications to the State’s … tax revenue
sources” for years to come, as well as “such other information as the Secretary may
require for the administration of” the law. 42 U.S.C. § 802(d)(2).
Believing the Tax Mandate to be an unconstitutional intrusion on their
sovereignty, Plaintiff States sued for injunctive and declaratory relief. Doc. 1. This
Court, in resolving the States’ preliminary injunction motion (Doc. 21), held that,
accepting the allegations in the Complaint as true, the States had Article III standing
to maintain this action and that the States’ claims were ripe. Doc. 71 at 16-18. The
4
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Court did not reach the merits of the claims, but “encouraged” an expedited briefing
schedule to “aid in a prompt resolution of this action.” Id. at 25.
Toward the close of briefing on the preliminary injunction motion, the
Department of Treasury released an interim final rule purporting to implement
ARPA. See Coronavirus State and Local Fiscal Recovery Funds, 86 Fed. Reg. 26786
(May 17, 2021). The Interim Final Rule states that “because money is fungible,”
even ARPA funds “not explicitly or directly used to cover the costs of changes that
reduce net tax revenue … may be used in a manner inconsistent with the statute by
indirectly being used to substitute for the State’s or territory’s funds that would
otherwise have been needed to cover the costs of the reduction.” 86 Fed. Reg. at
26807. The Rule creates a framework for identifying illegal indirect offsets.
First, every fiscal year, States “identify and value” anticipated legislative and
administrative actions that might reduce tax revenue. Id. However, changes to
income-tax rates that comply with federal law, rate reductions automatically
triggered by laws in effect prior to March 3, 2021, and “[c]hanged administrative
interpretations” that correct “prior inaccurate interpretations” are not counted as
“covered changes.” Id. at 26808.
Second, if the State’s covered changes are anticipated to decrease revenue by
1 percent or less of the State’s 2019 inflation-adjusted revenue, the decreases are
deemed “de minimis” and do not trigger the Mandate. Id. at 26807, 26809, 26823.
5
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Third, a State falls within a safe harbor from the Mandate if its actual tax
revenue for a fiscal year exceeds its inflation-adjusted 2019 tax revenue. Id. at
26807, 26809.
Finally, if neither the de minimis exception nor the safe harbor apply, Treasury
considers whether the decreased revenue has been offset by increases in revenue or
certain qualified spending cuts. Id. at 26807, 26809–10, 26823. Spending cut values
are set by comparing a State’s most recent expenditure to its expenditure in 2019
(adjusting for inflation). Id. at 26809–10. If the federal government determines that
revenue increases and “covered spending cuts” fully counterbalance drops in net tax
revenue, then the federal government will deem that the State has not violated the
Tax Mandate. To determine which spending cuts are “covered,” Treasury’s
supervision must extend beyond how States are spending ARPA funds to also cover
how States are spending State funds. Spending cuts in “areas” where States spent
ARPA funds are not “covered spending cuts” and thus cannot offset a decrease in
revenue. Id. at 26810.
Even a spending cut that a legislature thinks would qualify as covered in one
year may become an uncovered spending cut years later. Treasury promises to
“monitor changes in spending throughout the covered period,” and if a spending cut
in one year is, years later, “replaced with Fiscal Recovery Funds and used to
indirectly offset a reduction in net tax revenue resulting from a covered change,
6
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Treasury may consider such change to be an evasion of the restrictions of the offset
provision and seek recoupment of such amounts.” Id.
Ultimately, “all relevant facts and circumstances” are in play when Treasury
determines whether a State has violated the Tax Mandate. Id.
As of July 23, 2021, the following Plaintiff States have submitted to the
Treasury Secretary signed certifications and have received funds under ARPA:
Alabama, Arkansas, Alaska, Florida, Iowa, Kansas, Montana, New Hampshire,
Utah, and West Virginia. See Doc. 74, Joint Stipulation of Facts; 42 U.S.C.
§ 802(d)(1). The remaining Plaintiff States—Oklahoma, South Carolina, and South
Dakota—have not yet provided certifications to the Secretary.
ARGUMENT
I. The Tax Mandate Is Unconstitutional.
A. The Tax Mandate Violates the Spending Clause.
Congress’ spending powers permit it to place some restrictions on the States
as conditions for receiving federal funds that Congress may not otherwise impose
on the States. Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 576
(2012) (op. of Roberts, C.J.).3 But this power is far from unlimited. Stipulations on
the use of federal funds exceed Congress’ spending power unless they meet all the
following conditions: (1) the expenditure must benefit the general welfare; (2) any
3
Unless otherwise noted, citations to NFIB are to the controlling opinion of Chief Justice Roberts.
7
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condition must be unambiguous; (3) any condition must be reasonably related to the
grant’s purpose; (4) the grant and any conditions attached to it cannot violate an
independent constitutional provision; and (5) the grant cannot amount to coercion as
opposed to encouragement. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987).
Though ARPA may advance the general welfare, the Tax Mandate is
unconstitutional because it violates every other Dole factor, and Treasury’s attempt
to save the provision through regulation does not cure these constitutional defects.
1. The Federal Tax Mandate Is Ambiguous.
Congress must “speak with a clear voice” “[i]f [it] intends to impose a
condition on the grant of federal moneys”—that is, “it must do so unambiguously.”
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). This
requirement means that Congress must “define those conditions clearly enough for
the states to make an informed choice.” Benning v. Georgia, 391 F.3d 1299, 1306
(11th Cir. 2004) (citing Penhurst, 451 U.S. at 25). Congress neglects this duty when
a provision’s “text, literally read, admits of two plausible interpretations.” Graham
Cnty. Soil & Water Conservation Dist. v. United States, 545 U.S. 409, 419 n.2
(2005). The Federal Tax Mandate is an example of such neglect. Here is its text:
(A) IN GENERAL.—A State or territory shall not use the funds
provided under this section ... to either directly or 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
8
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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). The statute does not provide a way to determine whether
a State’s net tax revenues are “reduc[ed].” It does not specify whether its prohibition
reaches all tax rate reductions, even if such a reduction is expected to be—or is
actually—revenue neutral. Especially as Plaintiff States emerge from the economic
effects of the pandemic, the tax revenues States receive may differ significantly from
what States expect. Does the Tax Mandate turn on expected tax reductions, or actual
tax reductions? Congress did not answer the question.
And that, arguably, isn’t even the most confusing part of the statute. Congress
did not define what it means to “directly or indirectly” offset tax cuts, and neither
Plaintiffs nor Defendants can divine these words’ meaning from the text of the
statute. In prior briefing before this Court, Defendants were unable to give a clear
explanation for what these terms mean. Nevertheless, Congress gave the Secretary
authority to claw back funds Treasury suspects were used as a direct or indirect
offset. See 42 U.S.C. § 802(e). And because “[m]oney is fungible,” see Holder v.
Humanitarian Law Project, 561 U.S. 1, 37 (2010), any ARPA funds the Plaintiff
States receive could be viewed as indirectly offsetting any reduction in tax revenue
from a change in state law or policy. After all, a decrease in one part of a State’s
revenue is necessarily offset somehow to achieve a balanced budget.
9
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It is impossible for the Plaintiff States to “make an informed choice” about the
costs of receiving ARPA funds because it is impossible to know how to exercise
taxing authority without putting ARPA funding at risk. Benning, 391 F.3d at 1306;
see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)
(“We must ask whether such a state official would clearly understand … the
obligations[.]”). If the best interpretation is that the Tax Mandate covers every
change that leads to decreased revenue, then Congress passed a statute with startling
breadth and the constitutional concerns are all the more troubling. And if that is not
what Congress intended, how can States know where the line actually lies? Nothing
in the statutory text answers when “indirect” dwindles to “nonexistent.” Thus,
ARPA harms every State by presenting them “an unconstitutionally ambiguous
deal,” Doc. 71 at 16, and by inflicting an uncertainty that “will continue to exert
pressure on state legislators not to consider any tax change, or set of tax changes, as
to which the Tax Mandate implications cannot be assessed,” Ohio v. Yellen, No.
1:21-CV-181, 2021 WL 2712220, at *8 (S.D. Ohio July 1, 2021).
The text of the Tax Mandate raises more questions than it answers. States were
presented a bargain that was hopelessly ambiguous as to one of its most critical
provisions, and they are continuing to suffer the effects of that ambiguity. See Ex. 2,
Albritton Decl. The Court should redress these harms by holding that the Tax
Mandate is unconstitutionally ambiguous under the Spending Clause.
10
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a. The Interim Final Rule Cannot Cure An Unconstitutionally
Ambiguous Law.
Treasury’s recently issued Interim Final Rule cannot and does not solve the
ambiguity problem. As a threshold matter, it is “Congress” that must speak
“unambiguously” if it “intends to impose a condition on the grant of federal
moneys.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)
(emphasis added). Thus, “[i]t is axiomatic that statutory ambiguity defeats altogether
a claim by the Federal Government that Congress has unambiguously conditioned
the States’ receipt of federal monies in the manner asserted.” Va. Dep’t of Educ. v.
Riley, 106 F.3d 559, 567 (4th Cir. 1997) (en banc). Just as an agency cannot “cure
an unlawful delegation of legislative power by adopting in its discretion a limiting
construction of the statute,” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472
(2001), an agency cannot make an unconstitutionally vague condition enforceable
through later action.
This conclusion necessarily follows from the fact that Congress, not the
President, wields the spending power. The Constitution “carefully separates the
‘purse’ from the ‘sword’ by assigning to Congress and Congress alone the power of
the purse.” Tex. Educ. Agency v. U.S. Dep’t of Educ., 992 F.3d 350, 361-62 (5th Cir.
2021). Because “the President does not have the power to place conditions on federal
funds,” he “cannot delegate this power” to the Treasury Department. Cty. of Santa
Clara v. Trump, 250 F. Supp. 3d 497, 531 (N.D. Cal. 2017). To hold otherwise would
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allow the Executive to materially alter a bargain between the States and Congress.
Granting the Executive the power to “attach new conditions to federal grants,
unauthorized by Congress, … would give the Executive enormous power to pressure
states and localities.” Ilya Somin, Making Federalism Great Again, 97 Tex. L. Rev.
1247, 1285 (2019). Of course, preventing such “concentration of power” is precisely
why the Constitution creates a government of separated powers. Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2202 (2020) (quotation omitted).
Moreover, the Interim Final Rule cannot save the Tax Mandate, for if it could,
the Executive Branch would gain a power the Constitution never granted it: the
power to revive (and later effectively repeal) unconstitutional laws. When Congress
enacts a law that exceeds its enumerated powers, the law is “void.” Marbury v.
Madison, 1 Cranch 137, 177 (1803); see, e.g., Murphy v. NCAA, 138 S. Ct. 1461,
1485 (2018); United States v. Lopez, 514 U.S. 549, 566 (1995). And just as void
laws may not be enforced in court by the judicial branch, see Marbury, 1 Cranch at
177–78, they may not be enforced out of court by the executive branch, see Bond v.
United States, 564 U.S. 211, 226–27 (2011); Lopez, 514 U.S. at 567–68. All three
branches must follow the Constitution when it trumps a statute. Thus, when a statute
violates the Constitution, no branch should give it effect. Id.; Montgomery v.
Louisiana, 577 U.S. 190 (2016); Marbury, 1 Cranch at 177-78; Bank of Hamilton v.
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Lessee of Dudley, 27 U.S. 492, 526 (1829). Were it otherwise, the executive branch
(and ultimately the judiciary) would be enforcing an unconstitutional law.
Finally, the Rule cannot save the Tax Mandate without violating the
nondelegation doctrine. The Treasury Department is essentially claiming the power
to toggle the Tax Mandate on or off depending on whether the agency has issued
guidance of sufficient clarity. But as even the plurality in Gundy v. United States
recognized, if the Executive were given “plenary power to determine [a statute]’s
applicability,” “we would face a nondelegation question.” 139 S. Ct. 2116, 2123
(2019). Indeed, if ARPA has effectively granted Treasury the authority to determine
whether the Tax Mandate will lie dormant as an unconstitutionally vague provision
or spring to life through vivifying regulations, then Congress has impermissibly
delegated Treasury “a quintessentially legislative power.” Id. at 2144 (Gorsuch, J.,
dissenting). The Interim Final Rule thus cannot cure the Tax Mandate’s
unconstitutional ambiguity.
b. Congress Did Not Delegate Treasury the Authority to Cure the Tax
Mandate’s Ambiguity.
Even if Congress could assign an agency the power to clarify an
unconstitutionally ambiguous Spending Clause condition, Congress did not do so
here. See Ohio, 2021 WL 2712220, at *18-20. This follows from the major questions
doctrine, for “there can be little doubt that the language of [the Tax Mandate] leaves
open ‘major questions.’” Id. at *19.
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The major questions doctrine recognizes that while ambiguity in a statute
typically “constitutes an implicit delegation from Congress to the agency to fill in
the statutory gaps,” when the ambiguous provision concerns “a question of deep
‘economic and political significance’ that is central to th[e] statutory scheme,” then
courts should recognize that, “had Congress wished to assign that question to an
agency, it surely would have done so expressly.” King v. Burwell, 576 U.S. 473, 485
(2015) (quoting Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014)).
“The Tax Mandate ‘involv[es] billions of dollars in spending each
year,’ see Burwell, 576 U.S. at 485, and is expressly directed at a core State function,
the power to tax, that has long been recognized as ‘indispensable’ to the States’ very
existence.” Ohio, 2021 WL 2712220, at *19 (quoting Gibbons v. Ogden, 22 U.S. (9
Wheat.) 1, 199 (1824)). The Tax Mandate thus implicates several “question[s] of
deep ‘economic and political significance.’” King, 576 U.S. at 485. It follows then
that if Congress intended to give Treasury the power to issue regulations that
“upset the usual constitutional balance of federal and state powers,” Congress
would have made “its intention to do so unmistakably clear.” Gregory v. Ashcroft,
501 U.S. 452, 460 (1991) (quotation omitted). But the Tax Mandate contains no clear
indication that it would be incomplete until Treasury finished the job.
To the contrary, “[u]nder ARPA as written, … States were authorized to send
in certifications immediately upon the effective date of the Act. That is strong
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evidence that Congress considered the terms of the deal to be complete as of that
date.” Ohio, 2021 WL 2712220, at *20. This fact means that “the conditional-
spending offer here—which included the Tax Mandate, but not yet the regulations—
violated the Constitution when first presented to the States.” Id. And because
Congress never gave Treasury the authority to try to cure this defective deal, the Tax
Mandate is unconstitutional.
c. The Interim Final Rule is Unconstitutionally Ambiguous.
The Interim Final Rule also fails to solve Defendants’ ambiguity problems
because the Rule itself is ambiguous. For example, when it comes to assessing
“reduction[s] in the net tax revenue … resulting from a change in law, regulation, or
administration interpretation … that reduces any tax,” 42 U.S.C. §802(c)(2)(A), the
Rule sets out four characteristics. First, the “change in law” must be a “covered
change.” 86 Fed. Reg. at 26809. But the “covered change” definition itself
introduces ambiguity, for it excludes certain changes including administrative
interpretations that are “corrections to replace prior inaccurate interpretations.” Id.
at 26808. How Treasury will determine whether a state agency’s interpretation of
state law was accurate now or before is anyone’s guess.
And while the Rule provides some more guidance than the statutory text, it
still fails to clearly define how a State “indirectly offsets” spending cuts with ARPA
funds. A State, for example, can cut taxes so long as decreases in revenue are
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counterbalanced by “[s]pending cuts in areas not being replaced by Fiscal Recovery
Funds.” Id. at 26808. But the Rule does not define “areas.” And because the “interim
final rule provides benefits across several areas” due to the breadth with which
ARPA funds can be used, id. at 26816, few “areas” of State spending will be suitable
candidates for spending cuts that could offset a decrease in revenue.4
Worse still, Treasury has multiple years during which it can assess whether “a
spending cut is subsequently replaced with Fiscal Recovery Funds and used to
indirectly offset a reduction in net tax revenue resulting from a covered change.” Id.
at 26810. Thus, a spending cut in 2021 followed by a use of ARPA funds in 2023
could later be deemed “an evasion of the restrictions of the offset provision” that
would entitle Treasury to recoupment. Id. In short, the Rule still leaves States
guessing as to how they may exercise their core sovereign power to tax. Because
neither Congress nor Treasury has clearly set out the terms of the Tax Mandate
condition, it cannot be enforced against the States.
4
The Rule appears to provide some clarity by declaring that a State can, without fear, count as
covered spending cuts any cuts from a “department, agency, or authority” on which the State has
spent no ARPA funds. 86 Fed. Reg. at 26810. But if the State has spent any ARPA funds on any
“area” at a department, agency, or authority, ARPA funds “generally w[ill] be deemed to have
replaced the amount of spending cut” from the department, agency, or authority. Id. The Rule thus
suggests that a State spending ARPA funds on one “area” at an agency might have room to make
covered spending cuts in another “area” covered by the agency, but that doing so is risky for a
State, as Treasury might later view the relevant “area” differently.
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2. The Tax Mandate Is Coercive.
“When a heavy federal tax is levied to support a federal program that offers
large grants to the States, States may, as a practical matter, be unable to refuse to
participate in the federal program and to substitute a state alternative.” NFIB, 567
U.S. at 680 (Scalia, J., with Kennedy, Thomas, and Alito, JJ., dissenting). Such laws
amount to unconstitutional coercion. NFIB flowed from Congress’ decision to
condition Medicaid funding on a State’s willingness to expand Medicaid coverage—
a “threatened loss of over 10 percent of a State’s overall budget.” Id. at 581-82
(plurality op.). This amount meant the funding was not “relatively mild
encouragement,” but “a gun to the head.” Id. at 581. Thus, the Court found the
legislation markedly different from the law Dole approved, where if States refused
to raise the drinking age to 21, they were threatened with loss of less than half of one
percent of their budgets. Id.
When it comes to conditional funding, the Tax Mandate—as in NFIB—is a
“shift in kind, not merely degree.” See 567 U.S. at 583. ARPA uses the financial
needs of the Plaintiff States and their citizens stemming from a global pandemic to
compel them to surrender sovereign taxing authority for years to come. Only the
federal government can quickly borrow the massive sums of money allocated
through ARPA, and the sums are massive. See 42 U.S.C. § 802(b)(3).
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The Supreme Court in NFIB did not set a bright line for the constitutionality
of spending programs, but “wherever that line may be,” the Tax Mandate “is surely
beyond it.” 567 U.S. at 585. The NFIB Court held that conditioning “10 percent of
a State’s overall budget” on compliance with federal conditions was coercion, id. at
581-82, and here the stakes are likewise high. Alabama, for example, is slated to
receive over $2.1 billion, and Alabama estimates that it will have about $9.7 billion
in revenue for the legislature to appropriate through the State’s general fund budget
and education trust fund budget for fiscal year 2021.5 To be sure, in addition to this
discretionary revenue, there are other earmarked funds (including, for example,
federal Medicaid dollars) that increase the size of each State’s total expenditures.
Thus, a report by the National Association of State Budget Officers pegged
Alabama’s estimated discretionary spending for 2020 at roughly $9.3 billion and its
estimated expenditures at roughly $28.6 billion.6 But whether ARPA funds are
measured against the smaller denominator of discretionary revenue or larger
denominator of expenditures, the statute falls within the zone of NFIB’s coercion
analysis, as recent data suggest the States stand to forfeit funds that equate to
between 5.7 percent (Arkansas) and 20.1 percent (South Dakota) of the State’s
5
Alabama Department of Finance, Executive Budget Office, State Receipts,
https://budget.alabama.gov/state-receipts/ (last visited July 29, 2021).
6
Nat’l Assoc. of State Budget Officers, 2020 State Expenditure Report, p. 8 (Table 1), available
at https://perma.cc/62WG-B9LW. The Association is “composed of the heads of state finance
departments,” id. at i, its “data are self-reported by the states.” id. at v.
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expenditures.7 The sheer size of these funds, combined with the tolls of a once-in-a-
century pandemic, leave the States no meaningful way to “defend their prerogatives”
through a “legitimate choice” to say “no thanks.” NFIB, 567 U.S. at 577–79. Put
simply, “Congress has ‘crossed the line distinguishing encouragement from
coercion,’” id. at 579 (quoting New York v. United States, 505 U.S. 144, 175 (1992)),
and any argument to the contrary “ignores reality,” 567 U.S. at 680 (Scalia, J., with
Kennedy, Thomas, and Alito, JJ., dissenting).
3. The Tax Mandate Is Unrelated to ARPA’s Purpose.
Spending conditions must be germane to the purposes of the grant, Dole, 483
U.S. at 208, which demands relevance “to federal interest in the project and to the
over-all objectives,” Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295
(1958). Otherwise, “the spending power could render academic the Constitution’s
other grants and limits of federal authority.” New York, 505 U.S. at 167.
ARPA was created and promoted as a plan to assist in the rebound from the
pandemic’s economic devastation. This purpose appears in the four categories where
Congress affirmatively authorized state spending—on financially impacted
households and businesses, essential worker compensation, lost state government
revenue, and infrastructure investment. 42 U.S.C. § 802(c)(1)(A-D).
7
Compare id. at 8 (Table 1) with U.S. Department of Treasury, Allocation for States, available at
https://home.treasury.gov/system/files/136/fiscalrecoveryfunds-statefunding1-508A.pdf (last
visited July 29, 2021).
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Prohibiting tax reductions, however, does not advance ARPA’s goal of
providing meaningful relief to individuals and entities affected by the pandemic.
States are already required by 42 U.S.C. § 802(c)(1) to spend the federal funds on
ARPA’s identified purposes. The Tax Mandate does nothing to require that States
spend funds on COVID-related purposes; a State could zero out its spending on
COVID, fund those expenditures with ARPA funds, and use the surplus State funds
on anything except tax relief. Thus, beyond clarifying that ARPA funds must be used
on expenditures and not tax cuts, the Tax Mandate does nothing to further the goal
of providing COVID relief. Indeed, by allowing States to spend State funds on non-
COVID purposes while punishing them for providing tax relief to those affected by
the pandemic, the Tax Mandate undercuts ARPA’s ultimate goal. After all, ARPA
itself provides tax relief. See ARPA, Pub. L. No. 117-2, § 9621 (expanding earned
income tax credit), § 9673 (exempting small business revitalization funds). And
ARPA allows localities—but not States—to provide tax relief by providing them
funds free from any Tax Mandate. See 42 U.S.C. § 803. It thus appears that the only
purpose of the Tax Mandate is bigger government for big government’s sake, which
is certainly not the stated purpose of ARPA.
B. The Tax Mandate Violates the Tenth Amendment.
The anticommandeering doctrine serves the important function of
safeguarding “a fundamental structural decision incorporated into the Constitution,
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i.e., the decision to withhold from Congress the power to issue orders directly to the
States.” Murphy, 138 S. Ct. at 1475. The federal government “may act only where
the Constitution authorizes it to do so.” Printz v. United States, 521 U.S. 898, 937
(1997). And “[s]tate sovereignty is not just an end in itself”; honoring “federalism
secures to citizens the liberties that derive from the diffusion of sovereign power.”
NFIB, 567 U.S. at 536 (citation omitted); see also The Federalist No. 45 (J. Madison)
(explaining that federalism helps ensure that powers, which “in the ordinary course
of affairs, concern the lives, liberties, and properties of the people,” were held by
locally accountable leaders). The Constitution’s division of federal-state powers,
including the anticommandeering doctrine, thus ultimately exists “for the protection
of individuals.” Murphy, 138 S. Ct. at 1477 (citations omitted).
Anticommandeering applies to both affirmative and negative commands:
Directives not to act are still “direct orders to state legislatures.” Murphy, 138 S. Ct.
at 1478. And federal orders to the States are unconstitutional under the
anticommandeering doctrine when they implicate either of two concerns. First,
because the doctrine serves as “one of the Constitution’s structural protections of
liberty,” it applies when federal action threatens the “healthy balance of power
between the States and the Federal Government.” Id. at 1477. Second, it “promotes
political accountability” when it keeps decisions that affect the States in the hands
of state leaders. Id. (citations omitted). The Tax Mandate upsets both interests.
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First, the Tax Mandate is an unprecedented intrusion on State sovereignty in
an area the Constitution reserves for the States: tax policy. See Doc. 21 at 31–33.
Second, the Tax Mandate prevents voters from holding their lawmakers accountable,
see id. at 33–34, for it undeniably restricts States’ ability to cut at least some taxes.
When a State imposes (or keeps in place) taxes only because of congressional
command, responsibility is blurred and political accountability avoided. See New
York, 505 U.S. at 168–69. The Tenth Amendment forbids this outcome.
The Interim Final Rule exacerbates this intrusion. To determine whether a
decrease in revenue has been indirectly offset by spending cuts or ARPA funds,
Treasury now must determine whether spending cuts by the States “in certain areas”
are acceptable to “pay for covered changes that reduce tax revenue.” 86 Fed. Reg.
at 26809. Thus, Treasury now finds itself in the business of analyzing and ultimately
influencing countless revenue and expenditure actions by the State.
Finally, it is “immaterial whether states voluntarily choose to be part of a
federal program, if Congress lacked the power to create such a program in the first
place.” Carey v. Throwe, 957 F.3d 468, 481 (4th Cir. 2020), cert. denied, 141 S. Ct.
1054 (2021). Congress lacked the power to create and impose the Tax Mandate, and
this Court should enjoin its enforcement against the Plaintiff States.
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II. The Court Should Enjoin the Tax Mandate and Declare It
Unconstitutional.
A. The Court Should Issue a Permanent Injunction.
A plaintiff is entitled to a permanent injunction if: (1) it “suffered an
irreparable injury”; (2) the “remedies available at law, such as monetary damages,
are inadequate to compensate for that injury”; (3) the “balance of hardships between
the plaintiff and the defendant” justify an equitable remedy; and (4) “the public
interest would not be disserved be a permanent injunction.” eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Plaintiff States satisfy each factor. First, the Tax Mandate has and will
continue to inflict irreparable injury on Plaintiff States, who are all either faced with
or bound by an unconstitutionally ambiguous and coercive “deal” that is intruding
on each State’s ability to exercise its “indispensable” sovereign power to tax. See
Gibbons v. Ogden, 22 U.S. 1, 199 (1824). Second, because the States cannot sue the
federal government for damages, and their harms are not redressable through
damages, “the remedies available at law” are “inadequate.” eBay, 547 U.S. at 391.
Third, the balance of hardships favor the States, which have a strong interest in not
having their sovereign authority impinged by an unconstitutional law, while
Defendants’ have no legitimate interest in enforcing that law. Fourth, an injunction
will promote the public interest because “the public … has no interest in enforcing
an unconstitutional law.” Scott v. Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010).
23
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B. The Court Should Award Declaratory Relief.
The Declaratory Judgment Act provides a federal court with jurisdiction over
“a case of actual controversy” the authority to “declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further
relief is or could be sought. Any such declaration shall have the force and effect of
a final judgment or decree and shall be reviewable as such.” 28 U.S.C. § 2201(a).
“Basically, the question in each case is whether the facts alleged, under all the
circumstances, show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance
of a declaratory judgment.” Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S.
270, 273 (1941). When an actual controversy is present, a declaratory judgment can
help relieve “uncertainty and insecurity with respect to rights, status, and other legal
relations,” Cas. Indem. Exch. v. High Croft Enters., Inc., 714 F. Supp. 1190, 1193
(S.D. Fla. 1989), and thus “facilitate efficient outcomes,” Med. Assur. Co. v.
Hellman, 610 F.3d 371, 381 (7th Cir. 2010).
Because Plaintiff States are suffering harms from the Tax Mandate, they have
standing to sue and this case involves an “actual controversy.” Id. And because the
Tax Mandate is unconstitutional, this Court may say so. “[W]hether to grant
declaratory relief is a matter for the court’s sound discretion.” Hollis v. Itawamba
Cty. Loans, 657 F.2d 746, 750 (5th Cir. Unit A Sept. 1981). “In the exercise of their
24
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 34 of 38
sound discretion to entertain declaratory actions[,] the district courts may not decline
on the basis of whim or personal disinclination[.]” Id. Here, there is no reason for
the Court not to award declaratory relief and several reasons for it to do so. By
clarifying the relationship between the States and the federal government, the Court
will dispel the uncertainty inhibiting the States’ exercise of their sovereign authority.
And that clarity will redound to the benefit of the States and their people, as elected
representatives will be free to exercise sovereign taxing power without fear of
federal punishment in the coming months and years.
CONCLUSION
The Court should enjoin enforcement of the Tax Mandate and declare it
unconstitutional.
Respectfully submitted,
25
Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 35 of 38
/s/ Edmund G. LaCour, Jr. /s/ Bryan M. Taylor
STEVE MARSHALL Bryan M. Taylor
Alabama Attorney General Bachus Brom & Taylor LLC
Edmund G. LaCour, Jr. 3536 Independence Dr.
Alabama Solicitor General Birmingham, AL 35209
James W. Davis Tel: (334) 595-9650
A. Reid Harris btaylor@bachusbrom.com
Assistant Attorneys General
Office of the Alabama
Attorney General /s/ Nicholas Bronni
501 Washington Ave. LESLIE RUTLEDGE
P.O. Box 300152 Arkansas Attorney General
Montgomery, AL 36130 Nicholas J. Bronni (pro hac vice)
Tel: (334) 353-2196 Arkansas Solicitor General
edmund.lacour@alabamaAG.gov Vincent M. Wagner (pro hac vice)
jim.davis@AlabamaAG.gov Deputy Solicitor General
reid.harris@AlabamaAG.gov Dylan L. Jacobs (pro hac vice)
Counsel for State of Alabama Assistant Solicitor General
Office of the Arkansas
/s/ Lindsay S. See Attorney General
PATRICK MORRISEY 323 Center Street, Suite 200
West Virginia Attorney General Little Rock, Arkansas 72201
Lindsay S. See (pro hac vice) Tel: (501) 682-6302
West Virginia Solicitor General nicholas.bronni@arkansasag.gov
David C. Tryon (pro hac vice) Counsel for State of Arkansas
Special Assistant to the
Attorney General
(Admitted in Ohio; practicing /s/ John M. Ptacin
under supervision of West Virginia TREG R. TAYLOR
attorneys) Attorney General of Alaska
Jessica A. Lee (pro hac vice) John M. Ptacin (pro hac vice)
Assistant Solicitor General Chief Assistant Attorney General
Office of the West Virginia Alaska Department of Law
Attorney General 1031 West Fourth Avenue, Suite 200
1900 Kanawha Blvd. East Anchorage, Alaska 99501
Building 1, Room E-26 Tel: (907) 269-5100
Charleston, WV 25305 Facsimile: (907) 276-3697
Tel: (304) 558-2021 John.ptacin@alaska.gov
Lindsay.S.See@wvago.gov Counsel for State of Alaska
Counsel for State of West Virginia
26
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/s/ Jason Hilborn /s/ David M.S. Dewhirst
ASHLEY MOODY AUSTIN KNUDSEN
Florida Attorney General Attorney General of Montana
Jason H. Hilborn (pro hac vice) David M.S. Dewhirst (pro hac vice)
Assistant Solicitor General Solicitor General
Office of the Florida Office of the Attorney General
Attorney General 215 North Sanders
Office of the Attorney General P.O. Box 201401
State of Florida Helena, MT 59620-1401
PL-01 The Capitol Tel: (406) 444-4145
Tallahassee, FL 32399 David.Dewhirst@mt.gov
Tel: (850) 414-3300 Counsel for the State of Montana
Jason.Hilborn@myfloridalegal.com
Counsel for State of Florida
/s/ Jeffrey S. Thompson /s/ Anthony J. Galdieri
THOMAS J. MILLER Anthony J. Galdieri (pro hac vice)
Attorney General of Iowa Senior Assistant Attorney General
Jeffrey S. Thompson (pro hac vice) Office of the New Hampshire
Solicitor General Attorney General
1305 East Walnut Street 33 Capitol Street
Des Moines, IA 50319 Concord, NH 03301-6397
Tel: 515-281-5164 Tel: (603) 271-1214
jeffrey.thompson@ag.iowa.gov Anthony.J.Galdieri@doj.nh.gov
Counsel for State of Iowa Counsel for the State of
New Hampshire
/s/ Dwight R. Carswell /s/ Mithun Mansinghani
DEREK SCHMIDT MIKE HUNTER
Kansas Attorney General Oklahoma Attorney General
Dwight R. Carswell (pro hac vice) Mithun Mansinghani (pro hac vice)
Assistant Solicitor General Solicitor General
Office of the Kansas Oklahoma Office Of The
Attorney General Attorney General
120 SW 10th Ave., 3rd Floor 313 NE Twenty-First St.
Topeka, Kansas 66612 Oklahoma City, OK 73105
Tel: (785) 368-8410 Tel: (405) 521-3921
dwight.carswell@ag.ks.gov mithun.mansinghani@oag.ok.gov
Counsel for State of Kansas Counsel for the State of Oklahoma
27
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/s/ J. Emory Smith, Jr. /s/ Melissa A. Holyoak
ALAN WILSON SEAN REYES
South Carolina Attorney General Utah Attorney General
J. Emory Smith, Jr. (pro hac vice) Melissa A. Holyoak (pro hac vice)
Deputy Solicitor General Utah Solicitor General
Office of the South Carolina Office of the Utah Attorney General
Attorney General 160 E. 300 S., 5th Floor
Post Office Box 11549 Salt Lake City, UT 84114
Columbia, SC 29211 Tel: (801) 366-0260
Tel: (803) 734-3680 Counsel for State of Utah
esmith@scag.gov
Counsel for State of South Carolina
/s/ Jeffery J. Tronvold
JASON RAVNSBORG
South Dakota Attorney General
Jeffery J. Tronvold (pro hac vice)
Deputy Attorney General
1302 East Highway 14, Suite 1
Pierre, South Dakota 57501-8501
Tel: (605) 773-3215
Jeffery.tronvold@state.sd.us
Counsel for State of South Dakota
28
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CERTIFICATE OF SERVICE
I hereby certify that on July 29, 2021, I electronically filed the foregoing
Complaint with the Clerk of the United States District Court for the Northern District
of Alabama using the CM/ECF system. Participants who are registered CM/ECF
users have been served by the CM/ECF system.
/s/ Edmund G. LaCour, Jr.
Edmund G. LaCour, Jr.
File and source
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