Pandemic Darlings The pandemic economy, in original documents
Home Source documents 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)

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)

Summary

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.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“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/, SHA-256 fa7328f15201ce2af9c38fc3e2eb128c62b70d042b4995dee9f3d9ec6057838e.

Full text

        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
           Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 6 of 38




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
           Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 8 of 38




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
          Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 9 of 38




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
           Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 10 of 38




                                        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
        Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 12 of 38




                               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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 13 of 38




      (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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 14 of 38




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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 15 of 38




     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
            Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 16 of 38




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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 17 of 38




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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 18 of 38




      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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 19 of 38




      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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 20 of 38




             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

                                         11
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 21 of 38




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.




                                        12
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 22 of 38




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.


                                         13
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 23 of 38




      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



                                          14
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 24 of 38




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



                                          15
        Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 25 of 38




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.

                                               16
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 26 of 38




             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).




                                          17
        Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 27 of 38




       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.

                                               18
        Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 28 of 38




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).

                                               19
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 29 of 38




      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,



                                        20
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 30 of 38




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.



                                           21
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 31 of 38




      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.




                                           22
         Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 32 of 38




   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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 33 of 38




      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
      Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 36 of 38




/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
      Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 37 of 38




/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
       Case 7:21-cv-00465-LSC Document 75 Filed 07/29/21 Page 38 of 38




                          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

File
75-motion-for-permanent-injunction.pdf
Size
683,323 bytes
SHA-256
fa7328f15201ce2af9c38fc3e2eb128c62b70d042b4995dee9f3d9ec6057838e
Our copy
75-motion-for-permanent-injunction.pdf
Original
storage.courtlistener.com
Back to top