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Home Source documents Response in Opposition to Motion, State of Ohio v. Yellen, No. 1:21-cv-00181 (S.D. Ohio), Doc. 29 (April 16, 2021)

Response in Opposition to Motion, State of Ohio v. Yellen, No. 1:21-cv-00181 (S.D. Ohio), Doc. 29 (April 16, 2021)

Summary

Defendants' opposition to Ohio's motion for preliminary injunction in State of Ohio v. Yellen, Case No. 1:21-cv-00181-DRC, in the U.S. District Court for the Southern District of Ohio, filed April 16, 2021 (Doc. 29). The table of contents lists arguments that Ohio lacks Article III standing, that Ohio is not likely to succeed on the merits, that the balance of harms and the public interest preclude a preliminary injunction, and that any injunctive relief should be limited to Ohio. The introduction states that Ohio has not enacted any tax cut and that its challenge is not ripe. The conclusion asks that Ohio's preliminary-injunction motion be denied. The signature block names Stephen Ehrlich, with /s/ Stephen Ehrlich, dated April 16, 2021.

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

“Response in Opposition to Motion, State of Ohio v. Yellen, No. 1:21-cv-00181 (S.D. Ohio), Doc. 29 (April 16, 2021).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/response-in-opposition-to-motion-state-of-ohio-v-yellen-no-1-21-cv-001-03e5e4f8cb/, SHA-256 9e91cba69edd75181f4e1e8d397b17bd50ae56a365b8ff56ae8cccf6f4b0eb33.

Full text

 Case: 1:21-cv-00181-DRC Doc #: 29 Filed: 04/16/21 Page: 1 of 39 PAGEID #: 226




                 IN THE UNITED STATES DISTRICT COURT
                  FOR THE SOUTHERN DISTRICT OF OHIO




STATE OF OHIO,                            Case No. 1:21-cv-00181-DRC

                Plaintiff,                District Judge Douglas R. Cole

        v.

JANET YELLEN, in her official capacity
as Secretary of the Treasury, et al.,

                Defendants.



                  DEFENDANTS’ OPPOSITION TO OHIO’S
                 MOTION FOR PRELIMINARY INJUNCTION
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                                              TABLE OF CONTENTS

INTRODUCTION ................................................................................................................. 1

BACKGROUND ................................................................................................................... 4

                    A.        Statutory Background......................................................................... 4

                    B.        Factual and Procedural Background.................................................. 7

LEGAL STANDARDS .......................................................................................................... 7

ARGUMENT......................................................................................................................... 8

          I.      OHIO LACKS ARTICLE III STANDING. ................................................................. 8

                  To ensure that billions in new federal funds would be used for the
                  broad categories of state expenditures it identified, Congress speci-
                  fied that States cannot use the federal funds provided under the
                  American Rescue Plan Act to offset a reduction in net tax revenue re-
                  sulting from changes in state law. 42 U.S.C. § 802(c)(2)(A). Ohio asks
                  this Court to enjoin the enforcement of that offset provision. Ohio
                  lacks Article III standing to seek such relief, however, because it has
                  not enacted any tax cut, has not shown that any hypothetical tax cut
                  will decrease net tax revenue, and has not alleged that it plans to use
                  Rescue Plan funds to offset that theoretical reduction. Because Ohio
                  has not alleged any intention to use the federal funds in a way not
                  permitted under the Act, it lacks standing to challenge the offset pro-
                  vision. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
                  Relatedly, Ohio’s challenge is not ripe because it has not alleged that
                  it plans to engage in conduct that could result in recoupment of the
                  federal funds, and the Treasury Department has indicated no immi-
                  nent plans to recoup from Ohio. Without a credible prospect of re-
                  coupment, the State’s motion is premature. See Nat’l Park Hosp.
                  Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003).

          II.     OHIO IS NOT LIKELY TO SUCCEED ON THE M ERITS........................................... 12

                    A.        Congress Validly Exercised its Spending Clause Authority to
                              Restrict the Use of Rescue Plan Funds. ............................................ 13

                              Federal statutes that place conditions on how a State can use
                              federal funds are commonplace and present no constitutional
                              concern. The Rescue Plan allows States to deploy the consid-
                              erable funds provided for a broad array of purposes related


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                to the COVID-19 pandemic and its effects. And Congress
                acted well within constitutional bounds by conditioning the
                receipt of Rescue Plan funds on the State’s agreement to use
                funds for those purposes and not to offset a reduction in net
                tax revenue resulting from changes in state law. See Sabri v.
                United States, 541 U.S. 600, 608 (2004) (“The power to keep a
                watchful eye on expenditures . . . is bound up with congres-
                sional authority to spend in the first place.”); Bennett v. Ken-
                tucky Department of Education, 470 U.S. 656 (1985).

          B.    The Rescue Plan Is Not Coercive...................................................... 16

                Ohio’s coercion argument is meritless. To start, Ohio miscon-
                strues the Act. The Act does not “effectively ban[] state tax
                cuts or credits,” but prohibits only a State’s “use” of Rescue
                Plan funds to “offset” a reduction in “net tax revenue.” 42
                U.S.C. § 802(c)(2)(A). States are free to change their tax laws
                if those changes do not reduce net tax revenue, and States
                may reduce their net tax revenue as long as they do not use
                Rescue Plan funds to “offset” that reduction. In any event, the
                Supreme Court has never applied a coercion analysis to fund-
                ing conditions that “safeguard [the U.S.] treasury” by “gov-
                ern[ing] the use of the funds” that have been newly appropri-
                ated. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 578–80
                (2012) [hereinafter “NFIB”] (plurality opinion); South Dakota
                v. Dole, 483 U.S. 203, 211 (1987); Steward Mach. Co. v. Davis, 301
                U.S. 548, 590–91 (1937). And unlike the condition held invalid
                in NFIB, the Rescue Plan does not threaten States with the loss
                of preexisting funds if they fail to undertake new services.
                NFIB, 567 U.S. at 575–85. The condition here affects only the
                use of the new funds provided by the Act, and the conse-
                quence is only potential recoupment of the misused funds,
                which is well within Congress’s spending power. The re-
                quirement in the Rescue Plan that States use funds for speci-
                fied purposes and not for others (including to offset reduc-
                tions in net tax revenue that result from changes in state law)
                is no more “coercive” than any restriction on the receipt of
                federal funds that the Supreme Court has held to be a valid
                exercise of Congress’s Spending Clause authority.




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           C.       The Rescue Plan Provides Clear Notice of the Funding
                    Condition........................................................................................... 21

                    Congress must provide “clear notice to the States that they,
                    by accepting funds under the Act, would indeed be obligated
                    to comply with” certain conditions. Pennhurst State School &
                    Hospital v. Halderman, 451 U.S. 1, 25 (1981). The Act easily
                    meets that requirement because a state official would “clearly
                    understand that one of the obligations of the Act is the obli-
                    gation” not to use Rescue Plan funds to offset a reduction in
                    net tax revenue resulting from changes in state law. Arlington
                    Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006).
                    Congress need not “prospectively resolve every possible am-
                    biguity concerning particular applications of the require-
                    ments” of a funding statute. Bennett v. Kentucky Department of
                    Education, 470 U.S. 656 (1985); see Mayweathers v. Newland, 314
                    F.3d 1062, 1067 (9th Cir. 2002).

   III.   THE BALANCE OF HARMS AND THE PUBLIC INTEREST PRECLUDE A
          PRELIMINARY INJUNCTION. ............................................................................. 24

          Even if Ohio were able to establish a cognizable injury for purposes
          of standing, the State does not come close to demonstrating irrepara-
          ble harm required for a preliminary injunction. If Ohio were to accept
          the conditioned funding, use that funding to offset a reduction in net
          tax revenue, and face potential recoupment by the Secretary, any such
          recoupment proceedings would present “an adequate opportunity to
          fully present its defenses and objections.” Travis v. Pennyrile Rural
          Elec. Coop., 399 F.2d 726, 729 (6th Cir. 1968). By contrast, enjoining an
          Act of Congress would unquestionably impose irreparable harm on
          the federal government and contravene the public interest. See United
          States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001); see
          also Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in
          chambers).

   IV.    ANY INJUNCTIVE RELIEF SHOULD BE LIMITED TO OHIO ................................... 27

          If this Court were to enjoin any aspect of the Rescue Plan (and the
          Court should not), that injunction should apply only to Ohio because
          the “plaintiff’s remedy must be tailored to redress the plaintiff’s par-
          ticular injury” and must be no broader than “necessary to provide
          complete relief to the plaintiffs.” Gill v. Whitford, 138 S. Ct. 1916, 1934
          (2018) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)); Madsen v.
          Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). Ohio has no serious


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                  interest in whether other States are subject to the offset provision dur-
                  ing the pendency of the suit, and the State would be fully redressed
                  through a preliminary injunction prohibiting the Treasury Depart-
                  ment from “enforcing” the Rescue Plan against only Ohio.

CONCLUSION ................................................................................................................... 27




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                                            TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner,
  387 U.S. 136–149 (1967) ................................................................................................ 12

Abbott v. Perez,
  138 S. Ct. 2305 (2018) .................................................................................................... 11

ACLU of Ky. v. McCreary Cnty., Ky.,
  354 F.3d 438 (6th Cir. 2003) .......................................................................................... 26

Alaska v. U.S. Dep’t of Transp.,
   868 F.2d 441 (D.C. Cir. 1989) ....................................................................................... 11

Alfred L. Snapp & Son, Inc. v. Puerto Rico,
   458 U.S. 592 (1982) ....................................................................................................... 11

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
   548 U.S. 291 (2006) .................................................................................................. 22, 23

Babbitt v. Farm Workers,
   442 U.S. 289 (1979) ...................................................................................................... 8, 9

Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan,
   501 U.S. 1301 (1991) ................................................................................................ 11, 26

Basicomputer Corp. v. Scott,
   973 F.2d 507 (6th Cir. 1992) .......................................................................................... 26

Bennett v. Kentucky Department of Education,
   470 U.S. 656 (1985) ...................................................................................... 15, 20, 22, 23

Benning v. Georgia,
   391 F.3d 1299 (11th Cir. 2004) ...................................................................................... 23

Charles v. Verhagen,
  348 F.3d 601 (7th Cir. 2003) ..................................................................................... 23, 24

Charles C. Steward Mach. Co. v. Davis,
  301 U.S. 548 (1937) ............................................................................................ 18, 19, 20




                                                                v
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Citizens Bank of Md. v. Strumpf,
   516 U.S. 16 (1995) ......................................................................................................... 18

City of Los Angeles v. Barr,
   929 F.3d 1163 (9th Cir. 2019) ........................................................................................ 22

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
   527 U.S. 666 (1999) .................................................................................................. 13, 21

Cutter v. Wilkinson,
  423 F.3d 579 (6th Cir. 2005) ..................................................................................... 23, 24

D.T. v. Sumner Cnty. Sch.,
  942 F.3d 324 (6th Cir. 2019) ............................................................................... 3, 7, 8, 24

Daunt v. Benson,
  956 F.3d 396 (6th Cir. 2020) ............................................................................................ 7

Davis ex rel. Lashonda D. v. Monroe Cnty. Bd. of Educ.,
  526 U.S. 629 (1999) ....................................................................................................... 23

Fowler v. Benson,
  924 F.3d 247 (6th Cir. 2019) ............................................................................................ 7

Gill v. Whitford,
   138 S. Ct. 1916 (2018) .................................................................................................... 27

Gruver v. La. Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll.,
  959 F.3d 178 (5th Cir. 2020), cert. denied, 141 S. Ct. 901 (2020) .................................... 19

Holder v. Humanitarian L. Project,
  561 U.S. 1 (2010) ........................................................................................................... 18

Jackson v. Birmingham Bd. of Educ.,
   544 U.S. 167 (2005) ....................................................................................................... 23

Kansas v. United States,
  214 F.3d 1196 (10th Cir. 2000) ...................................................................................... 16

Kansas v. United States,
  249 F.3d 1213 (10th Cir. 2001) ........................................................................... 10, 11, 25




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Lewis v. Casey,
   518 U.S. 343 (1996) ....................................................................................................... 27

Lujan v. Defs. of Wildlife,
   504 U.S. 555 (1992) .................................................................................................... 8, 11

Madsen v. Women’s Health Ctr., Inc.,
  512 U.S. 753 (1994) ........................................................................................................ 28

Maleeah v. Brown, No. 4:18-cv-096,
  2019 WL 570762 (S.D. Ga. Feb. 12, 2019) ..................................................................... 24

Marks v. United States,
  430 U.S. 188 (1977) ....................................................................................................... 19

Maryland v. King,
  567 U.S. 1301 (2012) ............................................................................................ 4, 11, 27

Massachusetts v. Mellon,
 262 U.S. 447 (1923) .................................................................................................... 10, 11

Mayhew v. Burwell,
  772 F.3d 80 (1st Cir. 2014) ................................................................................. 15, 16, 19

Mayweathers v. Newland,
  314 F.3d 1062 (9th Cir. 2002) ................................................................................... 23, 24

Mazurek v. Armstrong,
  520 U.S. 968 (1997) ....................................................................................................... 24

Michigan v. Sault Ste. Marie Tribe of Chippewa Indians,
  737 F.3d 1075 (6th Cir. 2013) ........................................................................................ 12

Miss. Comm’n on Env’t Quality v. EPA,
  790 F.3d 138 (D.C. Cir. 2015) ....................................................................................... 19

Munaf v. Geren,
  553 U.S. 674 (2008) ......................................................................................................... 8

Nat’l Fed’n of Indep. Bus. v. Sebelius,
  567 U.S. 519 (2012) (plurality opinion) .................................................................. passim




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Nat’l Park Hosp. Ass’n v. Dep’t of Interior,
  538 U.S. 803–08 (2003) ..............................................................................................11, 12

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,
  434 U.S. 1345 (1977) ....................................................................................................... 4

New York v. United States,
  505 U.S. 144 (1992) ............................................................................................ 19, 20, 21

Nken v. Holder,
  556 U.S. 418 (2009) ......................................................................................................... 7

Obama for Am. v. Husted,
  697 F.3d 423 (6th Cir. 2012) .......................................................................................... 26

Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp.,
  766 F.2d 228–33 (6th Cir. 1985) .................................................................................... 11

Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t,
  305 F.3d 566 (6th Cir. 2002) ....................................................................................... 8, 24

Pennhurst State School & Hospital v. Halderman,
   451 U.S. 1 (1981) .......................................................................................... 21, 22, 23, 24

Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court,
   769 F.3d 447 (6th Cir. 2014) ............................................................................................ 8

Rimini St., Inc. v. Oracle USA, Inc.,
  139 S. Ct. 873 (2019) ..................................................................................................... 18

Roberts v. Neace,
  958 F.3d 409 (6th Cir. 2020) .......................................................................................... 26

S.C. Dep’t of Educ. v. Duncan,
   714 F.3d 249 (4th Cir. 2013) .......................................................................................... 16

Sabri v. United States,
   541 U.S. 600 (2004) ............................................................................................ 14, 15, 18

Sampson v. Murray,
  415 U.S. 61 (1974) ......................................................................................................... 26




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Segal v. Fifth Third Bank, N.A.,
   581 F.3d 305 (6th Cir. 2009) ............................................................................................ 9

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

Susan B. Anthony List v. Driehaus,
   573 U.S. 149 (2014) ...................................................................................................... 8, 9

Texas v. United States,
   809 F.3d 134 (5th Cir. 2015) .......................................................................................... 11

Travis v. Pennyrile Rural Elec. Coop.,
   399 F.2d 726 (6th Cir. 1968) ....................................................................................... 4, 25

Trump v. New York
   141 S. Ct. 530 (2020) ...................................................................................................... 12

United States v. Morrison,
  529 U.S. 598 (2000) ....................................................................................................... 13

United States v. Oakland Cannabis Buyers’ Coop.,
  532 U.S. 483 (2001) ......................................................................................................... 4

Voisine v. United States,
  136 S. Ct. 2272 (2016) .................................................................................................... 17

Walters v. Nat’l Ass’n of Radiation Survivors,
  468 U.S. 1323 (1984) ..................................................................................................... 27

Warshak v. United States,
  532 F.3d 521 (6th Cir. 2008) (en banc) ......................................................................... 13

Wash. State Grange v. Wash. State Republican Party,
  552 U.S. 442 (2008) ....................................................................................................... 13

Winter v. Nat. Res. Def. Council, Inc.,
  555 U.S. 7 (2008) ........................................................................................................... 24

Wyoming ex rel. Crank v. United States,
  539 F.3d 1236 (10th Cir. 2008) ...................................................................................... 11




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Constitutional Provisions
U.S. Const. art. I, § 8, cl. 1 .................................................................................................. 12

Statutes
20 U.S.C. § 241e (1970)....................................................................................................... 15

42 U.S.C. § 801...................................................................................................................... 4

42 U.S.C. § 802.............................................................................................................. passim

42 U.S.C. § 803....................................................................................................................4, 5

42 U.S.C. § 804...................................................................................................................... 4

42 U.S.C. § 805...................................................................................................................... 4

American Rescue Plan Act, Pub. L. No. 117-2, 135 Stat. 4 (2021) ...................................... 1

Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”),
 Pub. L. No. 116-137, 134 Stat. 281 (2020), codified at 42 U.S.C. § 801 ............................ 4

Other Authorities
Dave Yost, Twitter, @Yost4Ohio (Mar. 17, 2021), https://twitter.com/Yost4Ohio/sta-
 tus/1372516805818847234 ................................................................................................ 9

Dave Yost, Twitter, @Yost4Ohio,
 (Mar. 23, 2021), https://twitter.com/yost4ohio/status/1374387109599973378............ 9

Offset, Black’s Law Dictionary (11th ed. 2019).................................................................. 17

Treasury Statement on State Fiscal Recovery Funds and Tax Conformity (Apr. 7, 2021),
  https://go.usa.gov/xHW6R ............................................................................................ 7

Sub. H.B. 110, 134th Ohio Gen. Assembly § 5747.02 (as introduced by H. Comm. on Fin.,
  Apr. 13, 2021), https://perma.cc/5YNQ-X5Z9 ............................................................... 9

Yellen Letter to State Attorneys General (Mar. 23, 2021),
  https://go.usa.gov/xHW65.........................................................................................6, 7




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                                     INTRODUCTION
       As part of the American Rescue Plan Act, Pub. L. No. 117-2, 135 Stat. 4 (2021) (“Res-

cue Plan” or “Act”), Congress appropriated nearly $200 billion in new funding for state

governments. 42 U.S.C. § 802. Congress gave States considerable flexibility to use these

new federal funds, which may be directed to a broad variety of state efforts to respond to

the public health emergency created by the COVID-19 pandemic and to its economic ef-

fects, including by funding state-level government services and by providing assistance

to households, small businesses, and industries. Id. § 802(c). To ensure that the new fed-

eral funds would be used for the broad categories of state expenditures it identified, Con-

gress specified that States cannot use the federal funds to offset a reduction in net tax

revenue resulting from changes in state law. Id. § 802(c)(2)(A) (the “offset provision”).

That is a straightforward exercise of Congress’s well-settled Spending Clause authority

to attach conditions that “preserve its control over the use of federal funds.” Nat’l Fed’n

of Indep. Bus. v. Sebelius, 567 U.S. 519, 579 (2012) [hereinafter “NFIB”] (plurality opinion);

see, e.g., South Dakota v. Dole, 483 U.S. 203, 206-07 (1987).

       In seeking a preliminary injunction, Ohio argues that this provision is unconstitu-

tionally “coercive” because it would prevent the State from enacting tax cuts. The State’s

motion, however, suffers from multiple jurisdictional defects and rests on a fundamental

misunderstanding of both the challenged statute and the governing law.

       As an initial matter, Ohio lacks Article III standing because it has not enacted any

tax cut, let alone shown that any hypothetical tax cut will decrease net tax revenue or that

the State plans or intends to use Rescue Plan funds to offset that theoretical reduction.

Because Ohio has not alleged any intention to use the federal funds in a way not permit-

ted under the Act, it lacks standing to challenge the offset provision.

       Relatedly, Ohio’s challenge is not ripe. The only consequence of Ohio using Res-

cue Plan funds to pay for a reduction in net tax revenue would be potential recoupment

of that amount (i.e., the particular amount used for an impermissible offset) from the


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State. But here, Ohio has not alleged conduct that could result in recoupment, and the

Treasury Department has also indicated no imminent plans to recoup from Ohio. With-

out a credible prospect of recoupment, the State’s motion is premature. Particularly given

the extraordinary nature of Ohio’s request for a pre-enforcement preliminary injunction

based on the claim that a public-emergency-related federal statute should be invalidated

as unconstitutional, this Court should take special care to ensure that the jurisdictional

prerequisites for such drastic relief are satisfied.

       Nor is Ohio likely to succeed on the merits. Federal statutes that place conditions

on how a State can use federal funds are commonplace and present no constitutional

concern. Such provisions reflect the common-sense proposition that when Congress

gives money to States for a particular purpose, it may place conditions on a State’s ac-

ceptance of the funds to ensure that the funds are in fact used for the intended purpose.

The Rescue Plan allows States to deploy the considerable funds provided for a broad

array of purposes related to the COVID-19 pandemic and its effects. Congress acted well

within constitutional bounds by conditioning the receipt of Rescue Plan funds on the

State’s agreement to use funds for those purposes and not to offset a reduction in net tax

revenue resulting from changes in state law.
       Ohio’s argument that the Rescue Plan is coercive rests on the premise that the off-

set provision “effectively bans state tax cuts or credits.” Combined Mot. for a Prelim. Inj.

& Mem. in Supp. of the Mot. 5, ECF No. 3 (“PI Mot.”). But this disregards the plain lan-

guage of the Act, which addresses a reduction in a State’s “net tax revenues”—and the

Act does not even prohibit such reductions. A State is thus free to change its tax law as

it believes appropriate, cutting some taxes and increasing others. And even if a State

chooses to make changes that result in a reduction in net tax revenue, the Act only bars a

State using Rescue Plan funds to offset that reduction. Contrary to Ohio’s suggestion, the

“penalties if it reduces taxes” are not “unknown.” PI Mot. 18. The Act makes clear that




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if a State chooses to use Rescue Plan funds to offset a reduction in net tax revenue result-

ing from changes in state law, the only consequence would be a loss of monies commen-

surate with the amount of federal funding used for that offset. See 42 U.S.C. § 802(e).

       The Supreme Court’s decision in NFIB, 567 U.S. 519, underscores Ohio’s misun-

derstanding of the governing law. In the controlling opinion of NFIB, the Chief Justice

concluded that Congress could not require a State to extend Medicaid coverage to a new

population on penalty of losing its whole allotment of preexisting Medicaid funding. See

id. at 585. By contrast, the Chief Justice made clear that it was entirely permissible for

Congress to make the new federal funds provided by the Affordable Care Act—totaling

$100 billion per year, see id. at 576—contingent on a State’s expansion of coverage to cat-

egories of people never previously covered by its plan, see id. at 585.

       Unlike the condition held invalid in NFIB, the Rescue Plan does not threaten States

with the loss of preexisting funds if they fail to undertake new services. The condition

here affects only the use of the new funds provided by the Act. Indeed, the Rescue Plan’s

offset provision is far less restrictive than the ACA provision that NFIB indicated was

permissible, which made the entirety of the ACA’s new Medicaid funding contingent on

a State’s adoption of the ACA’s new adult-eligibility expansion under Medicaid. Unlike
that provision, the Rescue Plan does not provide States with an all-or-nothing choice. If

a State receiving funds under the Act chose to reduce its net tax revenue and offset that

reduction with Rescue Plan funds, its federal grant would be reduced only to the extent

it uses Rescue Plan funds to offset that reduction.

       Ohio also cannot demonstrate likely irreparable harm, a showing that is “indis-

pensable” for a preliminary injunction. D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 327 (6th

Cir. 2019). Even if Ohio were able to establish a cognizable injury for purposes of stand-

ing, the State does not come close to demonstrating irreparable harm. If Ohio were to

accept the conditioned funding, use that funding to offset a reduction in net tax revenue,

and face potential recoupment by the Secretary, any such recoupment proceedings would


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present “an adequate opportunity to fully present its defenses and objections.” Travis v.

Pennyrile Rural Elec. Coop., 399 F.2d 726, 729 (6th Cir. 1968). And if Ohio were unable to

succeed in such hypothetical future proceedings, the result would simply be that it has

to repay money—the quintessential example of harm that is not irreparable—such that

the State “is not entitled to the extraordinary remedy of injunction” at this stage. Id.

       By contrast, enjoining an Act of Congress would unquestionably impose irrepara-

ble harm on the federal government and contravene the public interest. See United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001) (emphasizing that “a

court sitting in equity cannot ignore the judgment of Congress, deliberately expressed in

legislation”) (quotation marks omitted)); see also Maryland v. King, 567 U.S. 1301, 1303

(2012) (Roberts, C.J., in chambers) (“[A]ny time a [government] is enjoined by a court

from effectuating statutes enacted by representatives of its people, it suffers a form of

irreparable injury.” (citation omitted)). Ohio’s motion should be denied.

                                    BACKGROUND
       A.      Statutory Background
       In March 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Se-

curity Act (“CARES Act”). See Pub. L. No. 116-137, § 5001, 134 Stat. 281, 501 (2020) (cod-

ified at 42 U.S.C. § 801). The CARES Act established a $150 billion “Coronavirus Relief

Fund” for States, tribal governments, and localities for 2020. See 42 U.S.C. § 801(a). That

fund covers costs that are “necessary expenditures incurred due to the public health

emergency” that “were not accounted for in the budget[s]” of those governments. Id.

§ 801(d). If recipients do not use the funds for the permitted purposes, the Act permits

the Treasury Department to recoup the amount of any misused funds. Id. § 801(e).

       On March 11, 2021, Congress enacted the American Rescue Plan Act. See Pub. L.

No. 117-2, § 9901(a) (codified at 42 U.S.C. §§ 802–805). The Rescue Plan establishes an

additional “Coronavirus State Fiscal Recovery Fund,” allocating another $220 billion to




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broadly “mitigate the fiscal effects” of the pandemic on States, territories, and Tribal gov-

ernments through 2024. 42 U.S.C. § 802(a)(1); see id. § 803(a) (additional $130 billion for

localities). Nearly $200 billion is allocated for the States and the District of Columbia. Id.

§ 802(b)(2)(A).

       The Rescue Plan provides States with considerable latitude, in scope and duration,

to use the funds for pandemic-related purposes. Through 2024, a State may use the funds

“to cover costs incurred”:

       (A) to respond to the public health emergency with respect to the Corona-
       virus Disease 2019 (COVID–19) or its negative economic impacts, including
       assistance to households, small businesses, and nonprofits, or aid to im-
       pacted industries such as tourism, travel, and hospitality;

       (B) to respond to workers performing essential work during the COVID–19
       public health emergency by providing premium pay to eligible workers of
       the State, territory, or Tribal government that are performing such essential
       work, or by providing grants to eligible employers that have eligible work-
       ers who perform essential work;

       (C) for the provision of government services to the extent of the reduction
       in revenue of such State, territory, or Tribal government due to the COVID–
       19 public health emergency relative to revenues collected in the most recent
       full fiscal year of the State, territory, or Tribal government prior to the emer-
       gency; or

       (D) to make necessary investments in water, sewer, or broadband infra-
       structure.

Id. § 802(c)(1). While CARES Act funds were limited to covering previously unbudgeted

costs of necessary expenditures incurred due to the public health emergency, the Rescue

Plan allows States to use the funds for “government services” to the extent the pandemic

has resulted in a “reduction in revenue.” Id. § 802(c)(1)(C). The Rescue Plan also permits

recipients to use the funds to respond broadly to the public-health emergency and its

negative economic effects, to support essential workers during the pandemic, and to in-

vest in certain infrastructure areas. Id. § 802(c)(1)(A), (B), (D).



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       The Rescue Plan includes two “further restrictions” to ensure that the broad outlay

of funds is used for the identified purposes while funds are available.            42 U.S.C.

§ 802(c)(2). One limitation (not challenged here) provides that a State may not “deposit”

Rescue Plan funds “into any pension fund.” Id. § 802(c)(2)(B). The other limitation (at

issue here) provides in relevant part that a State:

       shall not use the funds provided under [§ 802] . . . to either directly or indi-
       rectly offset a reduction in the net tax revenue of such State or territory re-
       sulting from a change in law, regulation, or administrative interpretation
       during the covered period that reduces any tax (by providing for a reduc-
       tion in a rate, a rebate, a deduction, a credit, or otherwise) or delays the
       imposition of any tax or tax increase.
Id. § 802(c)(2)(A). 1
       By its terms, this funding condition applies only to reductions in “net” tax revenue.

Id. This limitation on the use of federal funds is not implicated at all by a State’s choice

to modify its tax code—including by cutting taxes—if the changes, taken together, do not

result in a reduction of net tax revenue. If a State chooses to reduce its net tax revenue, it

may not use the Rescue Plan funds to “offset” that reduction. If a State chooses to do so,

the State will be required to repay only the amount of funds used to offset the “reduction

to net tax revenue” or “the amount of funds received,” whichever is less. 42 U.S.C.

§ 802(e).
       The Rescue Plan further authorizes the Secretary of the Treasury “to issue such

regulations as may be necessary or appropriate to carry out this section.” 42 U.S.C.

§ 802(f). Although the Secretary has provided some initial guidance, the Treasury De-

partment has not yet issued its implementing regulations. See Yellen Ltr. to State Attor-

neys General (Mar. 23, 2021), https://go.usa.gov/xHW65; Treasury Statement on State

Fiscal Recovery Funds and Tax Conformity (Apr. 7, 2021), https://go.usa.gov/xHW6R.

       1 The “covered period” began on March 3, 2021 and “ends on the last day of the

fiscal year of such State . . . in which all funds received by the State . . . have been ex-
pended or returned to, or recovered by, the Secretary.” 42 U.S.C. § 802(g)(1).

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Once the Treasury Department issues the regulations, a State may receive federal funds

after providing a certification (in a form the agency will provide) indicating that it needs

the funds to carry out the activities specified in § 802(c) and that it will use the funds in

compliance with that provision. 42 U.S.C. § 802(d)(1). States that receive funds must then

provide periodic reports and other information as the Secretary may require to adminis-

ter the Act. Id. § 802(d)(2).
       B.      Factual and Procedural Background
       On March 17, 2021, Ohio brought this suit alleging that the offset provision of

§ 802(c)(2)(A) “effectively prohibits reductions in taxes.” Compl., ECF No. 1, at 1. Ohio

expects to receive $5.5 billion under the Rescue Plan. Id. at 5. The State nowhere alleges

that it expects to cut any taxes, that it intends to enact changes in state law that would

reduce net tax revenue, or that it intends to use Rescue Act funds to offset any reduction

in net tax revenue. Id. at 1-10. Ohio nonetheless requests immediate relief to enjoin De-

fendants from “enforcing” the offset provision so that it can receive Rescue Plan funds

free of that restriction. See PI Mot. 1.
                                   LEGAL STANDARDS
       A preliminary injunction is an “extraordinary and drastic remedy” that “may only

be awarded upon a clear showing that the plaintiff is entitled to such relief.” Fowler v.
Benson, 924 F.3d 247, 256 (6th Cir. 2019) (quotation omitted). In determining whether to

issue a preliminary injunction, courts consider four factors: “(1) whether the party mov-

ing for the injunction is facing immediate, irreparable harm, (2) the likelihood that the

movant will succeed on the merits, (3) the balance of the equities, and (4) the public in-

terest.” D.T., 942 F.3d at 326. Where, as here, the federal government is the defendant,

the last two factors merge. See Daunt v. Benson, 956 F.3d 396, 422 (6th Cir. 2020) (citing

Nken v. Holder, 556 U.S. 418, 435 (2009)). And while the factors may be balanced, “the

existence of an irreparable injury is mandatory,” and “even the strongest showing on the




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other three factors cannot eliminate the irreparable harm requirement.” D.T., 942 F.3d at

326–27 (quotation omitted).
                                       ARGUMENT
         Ohio has not demonstrated a justiciable Article III case or controversy and has not

established that it satisfies any of the preliminary-injunction factors. It therefore fails to

carry its “burden of proving that the circumstances clearly demand” an injunction. Over-

street v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).
I.       O HIO LACKS ARTICLE III STANDING.
         In assessing Ohio’s request for preliminary relief, this Court must determine

whether the State has established jurisdiction, including Article III standing. Munaf v.

Geren, 553 U.S. 674, 691 (2008). To satisfy the “irreducible constitutional minimum” of

Article III standing, Ohio must first demonstrate “a concrete and particularized” injury

in fact that is “actual or imminent.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

When a plaintiff (like Ohio) seeks to enjoin the future enforcement of a statute, “the in-

jury-in-fact requirement” demands that the plaintiff “allege[] ‘an intention to engage in a

course of conduct arguably affected with a constitutional interest, but proscribed by a

statute, and [that] there exists a credible threat of [enforcement] thereunder.’” Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. Farm Workers, 442 U.S.

289, 298 (1979)). The prospect of enforcement must be “sufficiently imminent” to create

a concrete injury. Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court,

769 F.3d 447, 451 (6th Cir. 2014).

         Ohio cannot meet that standard because its asserted injury is hypothetical and

speculative. Its complaint and preliminary-injunction motion are silent as to how it in-

tends to use Rescue Plan funds, much less that it plans to use them in a manner incon-

sistent with the offset provision. Under that provision, a State may not use the new fed-

eral funds to offset a reduction in net tax revenue that result from changes in state law.

42 U.S.C. § 802(c)(2)(A). But Ohio does not allege that it has enacted any tax cuts, let alone


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tax cuts that would (taken together with any tax increases) reduce net tax revenue. Nor

does Ohio allege that it intends to use Rescue Plan funds to offset any reductions in its

net tax revenue. The State is “the master of [its] complaint” and must “take responsibility

for the allegations included”—or not included—“in the complaint.” Segal v. Fifth Third

Bank, N.A., 581 F.3d 305, 309, 312 (6th Cir. 2009).

       Not only has Ohio failed to allege any intent to use Rescue Plan funds to offset a

reduction in net tax revenue, but the State’s Attorney General has represented the oppo-

site intent. He stated on March 17 that “Ohio isn’t planning a tax cut,” Dave Yost, Twitter,

@Yost4Ohio        (Mar.      17,      2021),       https://twitter.com/Yost4Ohio/status/

1372516805818847234, and confirmed on March 23 that “Ohio is not contemplating a tax

cut,” id. (Mar. 23, 2021), https://twitter.com/yost4ohio/status/1374387109599973378.

Ohio cannot demonstrate any actual or imminent injury from the offset provision while

publicly declaring that the State has no intention of—indeed, is not even “contemplat-

ing”—engaging in the activity addressed in that provision.

       Ohio would be in no better position if the State were to simply propose a tax cut.

See, e.g., Sub. H.B. 110, 134th Ohio Gen. Assembly § 5747.02 (as introduced by H. Comm.

on Fin., Apr. 13, 2021) (proposing a 2 percent personal income tax rate cut), available at

https://perma.cc/5YNQ-X5Z9. The State has not passed any tax law, shown that the

law will decrease net tax revenue, or alleged any intent to use Rescue Plan funds to offset

that hypothetical reduction. In other words, merely proposing a tax cut is not itself the

“course of conduct arguably affected with a constitutional interest” and “proscribed by a

statute” required for pre-enforcement standing. Driehaus, 573 U.S. at 159 (quoting Babbitt,

442 U.S. at 298). The offset provision only restricts using Rescue Plan funds to offset a

reduction in net tax revenue resulting from a change in state law, not any tax change on

its own.




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       Unable to demonstrate that the Rescue Plan restricts any conduct that Ohio intends

to undertake, let alone that any recoupment is imminent, the State asserts a general in-

trusion on its “sovereign interests.” PI Mot. 17 (quoting Kansas v. United States, 249 F.3d

1213, 1227 (10th Cir. 2001)); see Compl. 2–3 (alleging “intru[sion] on the State’s sovereign

authority”). In doing so, Ohio fundamentally misunderstands the Rescue Plan. The Act

provides States with a broad outlay of federal funds and considerable flexibility in how

to use those funds to address needs related to the pandemic and its effects. But to ensure

that the new federal funds are used for those purposes and not others Congress chose not

to support, the Act requires a State to agree that it will not use the federal funds to offset

a reduction in net tax revenue resulting from changes to state law. The Rescue Plan does

not prohibit a State from cutting taxes; it merely restricts a State’s ability to use federal

funds distributed under the Rescue Plan to offset a reduction in net tax revenue. No State

has a “sovereign interest” in using federal funds for that purpose. And Ohio, of course,

retains the freedom to decline the funds.

       Ohio’s reliance on its sovereign taxation authority also cannot be reconciled with

the Supreme Court’s decision in Massachusetts v. Mellon, which made clear that Article III

jurisdiction is not satisfied by raising “abstract questions . . . of sovereignty.” 262 U.S. 447
(1923). There, Congress had enacted through the Spending Clause a maternity program

that permitted States to accept funding to protect the health of mothers and infants and

provided that violating the program’s conditions could result in the withholding of

funds. Id. at 478–79, 484-85. Massachusetts brought suit, alleging that the statute “im-

posed upon the [S]tates an illegal and unconstitutional option either to yield to the federal

government a part of their reserved rights or lose their share of the moneys appropri-

ated.” Id. at 482. The Supreme Court held that the State’s “naked contention that Con-

gress has usurped the reserved powers of the several States by the mere enactment of the

statute” was insufficient to establish an Article III case or controversy. Id. at 483. Instead,

the Court held that Massachusetts was required to allege that a sovereign interest was


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“actually invaded or threatened” by “the actual or threatened operation of the statute,”

id. at 485—precisely what Ohio has failed to demonstrate here. Ohio relatedly claims

injury to its “‘power to create and enforce a legal code’” or its “freedom to govern.” PI

Mot. 17–18 (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601 (1982));

Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018); Maryland v. King, 567 U.S. 1301 (2012) (Roberts,

C.J., in chambers). But, as noted, Ohio has not alleged any plan to use Rescue Plan funds

to offset a reduction in net tax revenue resulting from a change in state law, and even

then, only federal money—not state power—would be at stake.

       The other authorities that Ohio cites to establish a cognizable injury only under-

score its absence here. See Compl. 2–3; PI Mot. 17–18. Several decisions addressed con-

crete injuries, not present here, to state interests. See Kansas, 249 F.3d at 1227–28 (territo-

rial interests); Texas v. United States, 809 F.3d 134, 155 (5th Cir. 2015) (“financial loss”).

Other decisions addressed whether a defined state statute had been preempted by federal

law. See Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232–33 (6th Cir. 1985);

Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989); Wyoming ex rel. Crank v.

United States, 539 F.3d 1236, 1242 (10th Cir. 2008); see also Barnes v. E-Sys., Inc. Grp. Hosp.

Med. & Surgical Ins. Plan, 501 U.S. 1301, 1304 (1991) (Scalia, J., in chambers). As discussed,
though, no similar potential invasion of a state legislative prerogative is implicated here.

See Lujan, 504 U.S. at 566 (“Standing is not an ingenious academic exercise in the conceiv-

able,” but rather requires “a factual showing of perceptible harm.” (citation omitted)).

       For similar reasons, even if Ohio had Article III standing, its challenge to the Res-

cue Plan’s funding condition would not be ripe. “Ripeness is a justiciability doctrine de-

signed ‘to prevent the courts, through avoidance of premature adjudication, from entan-

gling themselves in abstract disagreements over administrative policies,” and “also to

protect the agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.’” Nat’l Park




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Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Labs. v. Gardner,

387 U.S. 136, 148–149 (1967)).

       Ohio’s claimed harm here rests on the potential recoupment of some Rescue Plan

funds from the State. See PI Mot. 13. But that contention only demonstrates that Ohio’s

suit “involves contingent, future events that may never occur.” Michigan v. Sault Ste. Ma-

rie Tribe of Chippewa Indians, 737 F.3d 1075, 1082 (6th Cir. 2013) (reversing pre-enforcement

preliminary injunction); accord Trump v. New York, 141 S. Ct. 530, 535 (2020) (per curiam).

Congress has authorized the Treasury Department “to issue such regulations as may be

necessary or appropriate to carry out this section.” 42 U.S.C. § 802(f). Once the agency

issues those regulations, Ohio would need to submit a certification that it plans to accept

Rescue Plan funds, receive those funds from the Treasury Department, and enact changes

in state tax laws that might implicate the offset provision. Even then, only if Ohio’s net

tax revenues fell, and only if Ohio decided to use Rescue Plan funds to offset that reduc-

tion, would recoupment even come into the picture. There must be some “concrete action

applying [Treasury’s] regulation to [Ohio’s] situation in a fashion that harms or threatens

to harm [it]” before prematurely adjudicating its challenge. Nat’l Park Hosp. Ass’n, 538

U.S. at 808. Particularly given the extraordinary nature of Ohio’s request for a pre-en-
forcement preliminary injunction based on the purported unconstitutionality of a federal

statute, it is especially critical to ensure that the jurisdictional prerequisites for this suit

are satisfied.
II.    O HIO IS N OT LIKELY TO SUCCEED ON THE MERITS.
       On the merits, Ohio has not come close to demonstrating that Congress exceeded

the bounds of its Spending Clause authority. The Constitution empowers Congress to

raise and spend revenue to “provide for the common Defence and general Welfare of the

United States.” U.S. Const. art. I, § 8, cl. 1. Congress “may, in the exercise of its spending

power, condition its grant of funds to the States upon their taking certain actions that

Congress could not require them to take, and that acceptance of the funds entails an


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agreement to the actions.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666, 686–87 (1999); NFIB, 567 U.S. at 576; Dole, 483 U.S. at 207.

       Congress’s Spending Clause authority is subject to certain limitations. Congress

use its spending power in pursuit of “the general welfare” and ensure that its “conditions

on the receipt of federal funds” are related to the federal interest. Dole, 483 U.S. at 207

(1987). Conditions imposed under the Spending Clause also must not violate “other con-

stitutional provisions” or be “coercive.” Id. at 208, 211. Finally, Congress’s “desire[] to

condition the States’ receipt of federal funds” must be unambiguous. Id. at 207.

       In this case, Ohio contends that the offset provision is unduly coercive and uncon-

stitutionally ambiguous and therefore is not a valid exercise of Congress’s Spending

Clause authority and violates the Tenth Amendment. See Dole, 483 U.S. at 207. As noted

above, Ohio does not claim that any particular state enactment will lead to recoupment;

Ohio instead challenges the condition as a facial matter. Ohio bears a significant burden

to demonstrate that the offset provision is “unconstitutional in all its applications,” and

this Court should be “reluctan[t] to grant relief in the face of facial, as opposed to as-

applied, attacks on statutes.” Warshak v. United States, 532 F.3d 521, 529 (6th Cir. 2008)

(en banc); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450
(2008). And in evaluating the Act’s facial constitutionality, “[d]ue respect for the deci-

sions of a coordinate branch of Government demands that [courts] invalidate a congres-

sional enactment only upon a plain showing that Congress has exceeded its constitutional

bounds.” United States v. Morrison, 529 U.S. 598, 607 (2000). Here, Congress has validly

exercised its Spending Clause authority, and Ohio’s contentions have no merit.
       A.      Congress Validly Exercised its Spending Clause Authority to Restrict
               the Use of Rescue Plan Funds.
       The Rescue Plan is a lawful exercise of Congress’s Spending Clause authority. De-

signed to assist in the Nation’s economic recovery during and following a pandemic, the

Rescue Plan appropriates nearly $200 billion in new federal funding for States and the



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District of Columbia. 42 U.S.C. § 802(b)(2)(A), (c)(1). With that funding, States have con-

siderable flexibility to “mitigate the fiscal effects” of the COVID-19 pandemic as they see

fit within the broad parameters specified by Congress. Id. § 802(a)(1), (c)(1). Unsurpris-

ingly, Congress sought to ensure that its substantial monetary outlay would be used as

intended. To that end, it included a guardrail that prohibits States that choose to accept

the federal money from using those funds to “directly or indirectly offset a reduction” in

“net tax revenue” resulting from changes in state law. 42 U.S.C. § 802(c)(2)(A).

       The offset provision is, by any measure, a modest restriction on an otherwise gen-

erous outlay of federal funds. By its plain terms, this restriction applies only when a State

uses Rescue Plan funds to offset a reduction in “net” tax revenue. 42 U.S.C. § 802(c)(2)(A).

That restriction is not implicated if reductions in some taxes are balanced with increases

in others. A State also does not transgress the limitation if it does not “use” Rescue Plan

funds to “offset” the reduction in net tax revenue. And the Act specifies that even if a

State uses the new federal funds to offset a reduction in net tax revenue, the consequence

is proportional to the misuse: the State will be required to repay only the portion of the

federal money it used to offset the reduction in net tax revenue (not to exceed the amount

of the federal grant). Id. § 802(e).
       Congress has broad leeway in establishing permissible uses of federal funds. And

Congress acted well within its Spending Clause authority in the Act by both describing

broad categories of permissible uses and proscribing certain narrow uses. See Sabri v.

United States, 541 U.S. 600, 608 (2004) (“The power to keep a watchful eye on expendi-

tures . . . is bound up with congressional authority to spend in the first place.”).

       Other Spending Clause legislation is illustrative: provisions that require States to

maintain their existing fiscal efforts as a condition of receiving federal funds are an un-

controversial and familiar exercise of Congress’s spending power. In Bennett v. Kentucky

Department of Education, 470 U.S. 656 (1985), for example, the Supreme Court explained

that, “[i]n order to assure that federal funds would be used to support additional services


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that would not otherwise be available,” the regulations implementing Title I of the Ele-

mentary and Secondary Education Act of 1965 “from the outset prohibited the use of

federal grants merely to replace state and local expenditures.” Id. at 659. After receiving

complaints that Title I funds were nonetheless being used to replace state and local funds

that otherwise would have been spent for participating children, Congress amended Ti-

tle I in 1970 to require that Title I funds be used “to supplement and, to the extent practi-

cal, increase the level of funds that would, in the absence of such federal funds, be made

available from non-Federal sources for the education of pupils participating in programs

and projects assisted under this subchapter,” and “in no case, as to supplant such funds

from non-Federal sources.” Id. at 660 (quoting 20 U.S.C. § 241e(a)(3)(B) (1970)). Federal

auditors later found that certain Kentucky programs had violated that provision, and the

Secretary of Education required Kentucky to repay the federal funds that had been mis-

used. Id. at 661. The Supreme Court upheld that determination, explaining that the State

“gave certain assurances as a condition for receiving the federal funds, and if those as-

surances were not complied with, the Federal Government is entitled to recover amounts

spent contrary to the terms of the grant agreement.” Id. at 663, 673–74.

       In accord with the Supreme Court’s decision, courts of appeals have applied and
upheld similar provisions in an array of Spending Clause statutes. For example, in May-

hew v. Burwell, 772 F.3d 80, 82 (1st Cir. 2014), the First Circuit upheld the Affordable Care

Act’s requirement that States accepting Medicaid funds maintain their state-level Medi-

caid eligibility standards for children for a specified period. The Mayhew court held that

this requirement “is constitutional, fitting easily within congressional spending power to

condition federal Medicaid grants.” Id.; see also, e.g., S.C. Dep’t of Educ. v. Duncan, 714 F.3d

249, 252 (4th Cir. 2013) (describing provision in the Individuals with Disabilities Educa-

tion Act, which generally requires the Secretary to reduce a State’s grant by the same




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amount by which the State has failed to maintain spending for special education for chil-

dren with disabilities); Kansas v. United States, 214 F.3d 1196, 1197 (10th Cir. 2000) (noting

similar requirement in the Temporary Assistance to Needy Families program).

       As these cases reflect, statutory provisions that limit federal funds from being used

to displace state efforts are both common and undoubtedly within Congress’s authority.

In the cases discussed above, States were required to maintain a certain level of spending;

the federal funds could not be used to displace existing State funding. Here, the Rescue

Plan’s offset provision is even less proscriptive: it does not mandate any particular spend-

ing or taxation level but instead merely prevents States from using federal funds to offset

a reduction in net tax revenue. Although federal funding conditions are often specific to

the particular state program at issue, Rescue Plan funding is not confined to any particu-

lar state program or activity—it broadly covers “government services” and “negative

economic impacts,” among other potential uses. 42 U.S.C. § 802(c)(1). Congress gave

States the additional flexibility to determine which of the broadly defined permissible

uses of the new funds are most appropriate to their circumstances. And consistent with

that generous, four-year outlay of flexible funding, Congress simply sought the assurance

that States would not displace their own tax revenue sources with the federal funds that
Congress had appropriated for other purposes.
       B.      The Rescue Plan Is Not Coercive.
       Ohio does not dispute that Congress generally can prohibit States from using fed-

eral grants to fund state tax cuts, and it does not argue that it has a constitutional right to

use federal funds to make up for a shortfall caused by a State’s decision to decrease net

revenues through tax cuts. It urges, however, that the Rescue Plan’s restriction is “coer-

cive” and an intrusion on its “sovereign authority.” PI Mot. 13.

       As an initial matter, the State’s coercion argument reflects a misunderstanding of

the offset provision. Ohio mistakenly assumes that the Rescue Plan requires a State re-

ceiving federal funds to freeze its existing tax laws in place and refrain from reducing any


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taxes. The State incorrectly declares, for example, that under the statute, “the Secretary

can make the States pay back federal funding every time they reduce taxes,” because “every

reduction in taxes, unless it can be shown to generate revenue, will violate” what Ohio

dubs the “Tax Mandate.” PI Mot. 13.

       Ohio thus reads the word “net” out of the statute. Under the Act’s plain terms, a

State is free to impose taxes as it believes appropriate, with no effect on the amount of the

federal grant, as long as the changes—taken together over the reporting period—do not

result in a reduction to the State’s net tax revenue. A State is also free to lower its net tax

revenue, as long as it does not use the Rescue Plan funds to offset—pay for—that reduc-

tion. And even if it does that, the only consequence under the Act would be to lower the

amount of its federal grant by the amount of the offset. The State is thus wrong to insist

that “[i]n essence, States that abide by the Tax Mandate’s terms are conducting their tax

policy at the behest of the central government.” PI Mot. 13–14.

       In addition to reading the word “net” out of the statute, Ohio also ignores the

words “use” and “offset.” The term “use” connotes “volitional” “active employment” of

federal funds. Voisine v. United States, 136 S. Ct. 2272, 2278–79 (2016). And the term “off-

set” means “[t]o balance” or “compensate for.” Offset, Black’s Law Dictionary (11th ed.
2019). Taken together, this language simply ensures that States are not employing federal

funds to finance state tax cuts. See Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 19 (1995)

(describing “offset” as balancing out a specific loss with another specific gain). But States

routinely offset reductions in net tax revenue by other means, including through certain

spending cuts. Ohio may thus cut taxes and lower its net tax revenue, but it cannot use

the federal funds to counterbalance those reductions.

       Ohio nonetheless insists that the offset provision’s phrase “directly or indirectly”

means that all tax cuts would be considered as offset by federal funds, because “[m]oney

is fungible.” PI Mot. 1 (quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 37 (2010)).

But both “directly” and “indirectly” are “adjectives” that cannot “alter the meaning of


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the word” that they modify (here, “offset”). Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct.

873, 878 (2019). It remains the case that the statute restricts only the use of Rescue Plan

funds to offset reductions in net tax revenue resulting from changes in state law, not every

form of tax reduction. If Congress had sought to prohibit “every reduction in taxes,” PI

Mot. 13, it could have explicitly and concisely said so.

         Ohio’s coercion argument is also based on a fundamental misunderstanding of the

governing law. Nothing in the Constitution or Spending Clause jurisprudence gives

States the broad right to do whatever they want with federal funds. See Sabri, 541 U.S. at

608 (“The power to keep a watchful eye on expenditures . . . is bound up with congres-

sional authority to spend in the first place.”). The Supreme Court has made clear that

“Congress may attach appropriate conditions to federal taxing and spending programs

to preserve its control over the use of federal funds.” NFIB, 567 U.S. at 579; Steward Mach.

Co. v. Davis, 301 U.S. 548, 590–91 (1937) (holding that where Congress places conditions

on the use of federal funds, “[i]n such circumstances, if in no others, inducement or per-

suasion does not go beyond the bounds of power”). And even when the Supreme Court

has applied a coercion analysis, the inquiry has never extended to funding conditions

that “safeguard [the U.S.] treasury” by “govern[ing] the use of the funds” that have been
newly appropriated. NFIB, 567 U.S. at 578–80; Dole, 483 U.S. at 211; Steward Mach., 301

U.S. at 590–91; see also New York v. United States, 505 U.S. 144, 171 (1992) (not undertaking

a “coercion” inquiry where “Congress has placed conditions—the achievement of the

milestones—on the receipt of federal funds”). Where, as here, Congress merely restricts

how States use newly appropriated federal money, a coercion analysis is inapplicable.

See, e.g., Gruver v. La. Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll., 959 F.3d 178,

183–84 (5th Cir. 2020); Miss. Comm’n on Env’t Quality v. EPA, 790 F.3d 138, 179 (D.C. Cir.

2015).

         Ohio’s heavy reliance on the Supreme Court’s decision in NFIB is also misplaced.

See PI Mot. 13. Unlike the statute challenged here, the Affordable Care Act provision at


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issue in NFIB threatened States with the loss of all of their preexisting Medicaid funding

unless they agreed to take part in the ACA’s expansion of Medicaid coverage to a new

adult population. In the controlling opinion for the Court, the Chief Justice recognized

that Congress could “make adjustments to the Medicaid program as it developed”—in-

cluding by altering the conditions on existing funds—but reasoned that the adult eligi-

bility expansion “accomplishe[d] a shift in kind, not merely degree,” because it condi-

tioned the receipt of old and new funds on a State’s agreement to establish a fundamen-

tally different program. NFIB, 567 U.S. at 583. 2 The Chief Justice concluded that Congress
had “crossed the line distinguishing encouragement from coercion” because of “the way

it ha[d] structured the funding,” and identified as a critical constitutional flaw that,

“[i]nstead of simply refusing to grant the new funds to States that [would] not accept the

new conditions, Congress ha[d] also threatened to withhold those States’ existing Medi-

caid funds.” Id. at 579–80 (citation omitted).

       By contrast (as particularly relevant here), the Supreme Court made clear that Con-

gress could make the entirety of the new federal funds provided by the ACA—totaling

$100 billion per year, see NFIB, 567 U.S. at 576—contingent on a State’s adoption of that

new program, id. at 585. The Supreme Court emphasized that “[n]othing” in its opinion

“preclude[d] Congress from offering funds under the Affordable Care Act to expand the

availability of health care, and requiring that States accepting such funds comply with

the conditions on their use.” Id. The statute’s primary constitutional flaw was the threat

to cut off all existing Medicaid funding if a State did not agree to the Medicaid expansion.

As the Court summarized, “Congress is not free” to “penalize States that choose not to




       2 Because Chief Justice Roberts, writing for a plurality, “struck down Medicaid

expansion on narrower grounds than the joint dissent, the plurality opinion is binding.”
Gruver, 959 F.3d at 183; Miss. Comm’n on Env’t Quality, 790 F.3d at 176 & n.22; Mayhew,
772 F.3d at 88–89; see also Marks v. United States, 430 U.S. 188, 193 (1977).

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participate in that new program by taking away their existing Medicaid funding.” Id.

(emphases added).

       The reasoning of NFIB forecloses Ohio’s argument that the offset provision is co-

ercive. The only funds regulated by the offset provision are the funds that Congress ap-

propriated as part of the Rescue Plan itself. See 42 U.S.C. § 802(a)–(c). And unlike NFIB,

States do not suffer any “penalty” to preexisting funds if they decline to accept Rescue

Plan funds with their attendant conditions. The requirement in the Rescue Plan that

States use funds for specified purposes and not for others (including to offset reductions

in net tax revenue that result from changes in state law) is no more “coercive” than any

restriction on the receipt of federal funds that the Supreme Court has held to be a valid

exercise of Congress’s Spending Clause authority. See, e.g., New York, 505 U.S. at 171;

Dole, 483 U.S. at 211; Bennett, 470 U.S. at 663; Steward Mach., 301 U.S. at 590–91.

       Indeed, the funding condition at issue here is significantly more modest than the

prospective funding condition that NFIB indicated was permissible. A State’s receipt of

funds under the Rescue Plan is not an all-or-nothing proposition dependent on compli-

ance with the offset provision. As explained above, the Act makes plain that if a state

were to use Rescue Plan funds to offset a reduction in net tax revenue, it could lose no
more than those funds used for the offset. See 42 U.S.C. § 802(e)(1).

       Finally, Ohio’s effort to characterize the offset provision as impermissible com-

mandeering under the Tenth Amendment should also be rejected. PI Mot. 13–15. Ohio

misstates Tenth Amendment principles when it argues that a grant condition that allows

“Congress to control indirectly what it cannot control directly” is one that “violates the

Tenth Amendment.” PI Mot. 14. To the contrary, the Supreme Court has repeatedly

affirmed that “Congress can use [its Spending Clause] power to implement federal policy

it could not impose directly under its enumerated powers.” 567 U.S. at 578; Coll. Sav.

Bank, 527 U.S. at 686 (same); Dole, 483 U.S. at 207 (same).




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       The inquiry under both the Spending Clause and the Tenth Amendment is

whether the challenged “provision is inconsistent with the federal structure of our Gov-

ernment established by the Constitution.” New York, 505 U.S. at 177; NFIB, 567 U.S. at

578–79. Because nothing in the Act “force[s] the States to implement a federal program,”

NFIB, 567 U.S. at 578–79, Ohio’s commandeering argument fails. In cases like this one—

where “a State has a legitimate choice whether to accept the federal conditions in ex-

change for federal funds”—the “state officials can fairly be held politically accountable

for choosing to accept or refuse the federal offer.” Id. at 578; New York, 505 U.S. at 168

(“Where Congress encourages state regulation rather than compelling it . . . state officials

remain accountable to the people.”). If Ohio dislikes the funding condition, or any other

provision of the Act, it is free to decline the generous federal aid in whole or in part—

Ohio’s voters know where to turn if they like, or dislike, the State’s choice.
       C.      The Rescue Plan Provides Clear Notice of the Funding
               Condition.
       Ohio fares no better in urging that the offset provision is “unconstitutionally am-

biguous.” PI Mot. 16. In Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17, 24

(1981), the Supreme Court reviewed the provisions of a funding statute that were merely

“hortatory, not mandatory,” and held that “if Congress intends to impose a condition on

the grant of federal moneys, it must do so unambiguously.” But that is not an onerous

requirement: Congress must provide only “clear notice to the States that they, by accept-

ing funds under the Act, would indeed be obligated to comply with” certain conditions.

Id. at 25. The idea is simply to keep Congress from “surprising participating States with

post-acceptance or retroactive conditions.” NFIB, 567 U.S. at 584 (quoting Pennhurst, 451

U.S. at 25); see City of Los Angeles v. Barr, 929 F.3d 1163, 1174–75 (9th Cir. 2019).

       The Supreme Court has also explained that, when Congress makes clear a State’s

acceptance of federal funds requires agreement to certain conditions, the details of those

conditions can be set out in agency guidance or regulations that specify the parameters



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of a condition on federal grants. For example, in Bennett—where, as discussed above, the

Supreme Court upheld the requirement in Title I of the Elementary and Secondary Edu-

cation Act—the Court observed that, “[g]iven the structure of the grant program, the Fed-

eral Government simply could not prospectively resolve every possible ambiguity con-

cerning particular applications of the requirements of Title I.” 470 U.S. at 669. The Court

emphasized that “[t]he fact that Title I was an ongoing, cooperative program meant that

grant recipients had an opportunity to seek clarification of the program requirements,”

id., and that “if the State was uncertain” as to its obligations, “it could have sought clari-

fication from the Office of Education,” id. at 672, which was the agency component

charged with administering the federal spending program.

       Here, “a state official who is engaged in the process of deciding whether the State

should accept [Rescue Plan] funds and the obligations that go with those funds” would

“clearly understand that one of the obligations of the Act is the obligation” not to use

Rescue Plan funds to offset a reduction in net tax revenue resulting from changes in state

law. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). The Act

establishes conditions on the use of funds (§ 802(c)), requires States to certify that they

will use the funds for the intended purposes and to report on the uses (§ 802(d)), and
informs States that the potential consequence of non-compliance is the recoupment of no

more than the portion of the funds used to offset a net tax revenue reduction (§ 802(e)).

The Act further permits the Secretary to implement its provisions by regulation. Id.

§ 802(f).

       There is no doubt that a state official deciding whether to accept Rescue Plan funds

has clear notice that those funds are conditioned on the State’s agreement not to use the

funds to offset a reduction in net tax revenue resulting from changes in state law—and

that implementation of the Rescue Plan will be set out through Treasury regulations.

“Nothing more is required under Pennhurst, which held that Congress need provide no

more than ‘clear notice’ to the [S]tates that funding is conditioned upon compliance with


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certain standards.” Cutter v. Wilkinson, 423 F.3d 579, 586 (6th Cir. 2005) (citing Pennhurst,

451 U.S. at 25); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005) (noting that the

Supreme Court has held “there was sufficient notice under Pennhurst where a statute

made clear that some conditions were placed on the receipt of federal funds”); Davis ex

rel. Lashonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999) (same).

       Ohio attempts to demonstrate ambiguity by posing hypothetical questions. PI

Mot. 16. But “Congress is not required to list every factual instance in which a [S]tate will

fail to comply with a condition,” which would be potentially “impossible.” Mayweath-

ers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002); see Bennett, 470 U.S. at 666 (explaining

that “every improper expenditure” need not be “specifically identified and proscribed”

in the statute); Jackson, 544 U.S. 167 at 183 (same); Davis, 526 U.S. at 650 (same). Congress

must simply “make the existence of the condition itself—in exchange for the receipt of

federal funds—explicitly obvious.” Mayweathers, 314 F.3d at 1067; Benning v. Georgia, 391

F.3d 1299, 1307 (11th Cir. 2004) (distinguishing situations where the statute is “unclear as

to whether the [S]tates incurred any obligations at all by accepting federal funds”); see

Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) (“[T]he existence of the conditions

[must be] clear, such that States have notice that compliance with the conditions is re-
quired.” (citing Mayweathers, 314 F.3d at 1067 and Pennhurst, 451 U.S. at 24–25)); Cutter,

423 F.3d at 586. The offset provision easily clears that bar.

       Even if the bar were higher, it would make no difference. The Rescue Plan pro-

vides in direct terms that States cannot use the federal funds to offset a reduction in net

tax revenue resulting from changes in state law. See Section II.A–B, supra. As the Su-

preme Court has repeatedly confirmed, more particularized questions that arise in the

course of implementing the Act can be addressed by Treasury Department regulations,

see 42 U.S.C. § 802(f), and by other formal or informal guidance.




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III.   THE BALANCE O F H ARMS AND THE PUBLIC INTEREST PRECLUDE A PRELIMINARY
       INJUNCTION.
       1. “A preliminary injunction is an extraordinary remedy never awarded as of

right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Ohio is not entitled to

this “extraordinary remedy” because it cannot establish that it is “likely to suffer irrepa-

rable harm in the absence of preliminary relief.” Id. at 20; see D.T., 942 F.3d at 327 (“[T]he

existence of an irreparable injury is mandatory.”). Ohio’s burden to show irreparable

harm is higher than what is required to establish standing. See, e.g., Mazurek v. Armstrong,

520 U.S. 968, 972 (1997). Even if Ohio were able to establish standing, it fails to establish

irreparable harm. Ohio cites no imminent plan to cut taxes at all, let alone to reduce net

tax revenue or use Rescue Plan funds to offset that reduction. And Ohio has conceded

that “it’s not as though there’s an impending date by which [a ruling is] absolutely criti-

cal.” Tr. of Prelim. Pretrial Conf. 4, Mar. 26, 2021, ECF No. 15; see Maleeah v. Brown, 2019

WL 570762, at *1 (S.D. Ga. Feb. 12, 2019) (denying preliminary-injunction motion where

plaintiff conceded on the record that he “is not in imminent harm”). At the very least,

the circumstances do not “clearly demand” relief. Overstreet, 305 F.3d at 573.

       Importantly, “[a]n injunction against [even] threatened legal action will not issue

if the party will have an adequate opportunity to fully present his defenses and objections

in the legal action he seeks to enjoin.” Travis, 399 F.2d at 729. Even if Ohio were to accept

the conditioned Rescue Plan funding and nonetheless use those funds to offset a reduc-

tion in net tax revenue (potentially facing recoupment by the Secretary), the State would

have “an adequate opportunity to fully present [its] defenses and objections” in any re-

coupment proceeding. Id. Because a court’s “[e]quity jurisdiction is founded on the prop-
osition that the complaining party does not have an adequate and complete remedy at

law,” a plaintiff “is not entitled to the extraordinary remedy of injunction” when another

remedy is available. Id. Here, Ohio seeks to preemptively enjoin any recoupment prem-

ised on the offset provision, see PI Mot. 1–2, but that “legal action that [the State] seeks to



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enjoin” is where the State should make its arguments, Travis, 399 F.2d at 729. With po-

tential recoupment nowhere in sight, Ohio’s challenge is “premature” and no injunction

should issue. Id.

       Despite all this, Ohio argues that the offset provision inflicts irreparable injury

“[b]ecause [it] causes precisely the same harm that occurs every time the federal govern-

ment intrudes upon the ‘sovereign interests’ of the States.” PI Mot. 17 (quoting Kansas,

249 F.3d at 1227). 3 As discussed above, however, there is no intrusion on state sovereign
interests here.

       Ohio argues that “[c]ourts presume irreparable harm in cases involving constitu-

tional violations,” PI Mot. 17, but Ohio has not established any constitutional violation,

see Section II, supra. In any event, as illustrated by the decisions Ohio cites, the Sixth

Circuit has invoked that principle only for certain types of constitutional violations in-

volving harms that are inherently difficult to quantify or to compensate with money, usu-

ally arising in the First Amendment context. See Roberts v. Neace, 958 F.3d 409, 416 (6th

Cir. 2020) (concluding that “[t]he prohibition on attending any worship service through

May 20 assuredly inflicts irreparable harm by prohibiting them from worshiping how

they wish”); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (invalidating a lim-

itation on in-person early voting imposed on all non-military Ohio voters); ACLU of Ky. v.

McCreary Cnty., 354 F.3d 438 (6th Cir. 2003) (concluding that the plaintiffs were likely to

succeed on claim that courthouse and classroom posting of Ten Commandments lacked

secular purpose). Here, Ohio is concerned that it might someday need to repay money it

receives under the Act. Such future harm would categorically fail to qualify as irrepara-

ble because it can be cured by the restoration of any improperly recouped funds if any



       3 The “sovereign interest” in the cited case concerned “placing the sovereign status

of land within the State of Kansas wholly in the hands of the Miami Tribe and [National
Indian Gaming commission].” Kansas, 249 F.3d at 1223. No similar sovereign interest is
at issue here.

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“injury” ever materializes. See Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992).

Indeed, courts have routinely characterized the potential loss of money as a quintessen-

tial example of harm that is not irreparable. See, e.g., Sampson v. Murray, 415 U.S. 61, 90

(1974).

       Ohio also contends that the Rescue Plan’s funding condition “causes irreparable

harm in a second way.” PI Mot. 18. The State argues that, “by subjecting Ohio to un-

known penalties if it reduces taxes, the Mandate causes ’an interference with the State’s

orderly management of its fiscal affairs.’” Id. (quoting Barnes, 501 U.S. at 1304 (Scalia, J.,

in chambers)). 4 This argument likewise fails. Ohio has not alleged that it will lower taxes
at all, let alone imminently, and the State faces no “unknown penalties” if it does decide

to cut taxes. The State can alter its taxes as it deems appropriate, with no effect on the

amount of its grant, if it does not offset a reduction of net tax revenue with Rescue Plan

funds. And if Ohio chooses to use Rescue Plan funds to offset such a reduction, the only

consequence under the Act is that the State’s grant would be affected only up to the

amount of the offset. See 42 U.S.C. § 802(e).

       2. Ohio is on no firmer ground in urging that an injunction against enforcement

of the offset provision “will not harm anyone,” on the theory that “[e]njoining that pro-

vision will not keep the United States from distributing the funds, nor will it interfere

with any entity’s expenditure of the funds.” PI Mot. 18. In other words, Ohio simultane-

ously asserts that an intrusion on its own sovereign interests (if it existed) would consti-

tute irreparable injury, but that enjoining an Act of Congress would not constitute irrep-

arable injury to the federal government.




       4 In Barnes, Justice Scalia stayed an order that enjoined enforcement of the Texas
Administrative Services Tax Act and directed the State to issue refunds. Ohio identifies
no immediate monetary benefit that would result from enjoining the condition on the
receipt of federal funds.

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       The Supreme Court takes a different view. “The presumption of constitutionality

which attaches to every Act of Congress is not merely a factor to be considered in evalu-

ating success on the merits, but an equity to be considered in favor of [the government]

in balancing hardships.” Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324

(1984) (Rehnquist, J., in chambers). “Any time a [government] is enjoined by a court from

effectuating statutes enacted by representatives of its people, it suffers a form of irrepa-

rable injury.” King, 567 U.S. at 1303 (Roberts, C.J., in chambers). Thus, an injunction

would irreparably harm the United States and undermine the public interest. That is only

more evident here, where the legislation at issue is a direct response to a national eco-

nomic and health emergency of historic proportions.
IV.    ANY INJUNCTIVE RELIEF SHOULD BE LIMITED TO O HIO.
       If this Court were to enjoin any aspect of the Rescue Plan (and the Court should

not), that injunction should apply only to Ohio. “The Court’s constitutionally prescribed

role is to vindicate the individual rights of the people appearing before it.” Gill v. Whit-

ford, 138 S. Ct. 1916, 1933 (2018). Thus, the “plaintiff’s remedy must be tailored to redress

the plaintiff’s particular injury.” Id. at 1934 (quoting Lewis v. Casey, 518 U.S. 343, 357

(1996)). And principles of equity independently require that injunctions be no broader

than “necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health

Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted). Here, Ohio concedes that this Court

may limit the scope of relief to only enjoin the offset provision’s “application to Ohio.”

PI Mot. 2. Indeed, Ohio has no serious interest in whether other States are subject to the

offset provision during the pendency of this lawsuit, and the State would be fully re-

dressed through a preliminary injunction prohibiting the Treasury Department from “en-

forcing” the Rescue Plan against only Ohio.
                                     CONCLUSION
       For the reasons explained above, Ohio’s preliminary-injunction motion should be

denied.


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DATED: April 16, 2021                Respectfully submitted,

                                     BRIAN M. BOYNTON
                                     Acting Assistant Attorney General

                                     ALEXANDER K. HAAS
                                     Director, Federal Programs Branch

                                     BRIGHAM J. BOWEN
                                     Assistant Director, Federal Programs Branch

                                     /s/ Stephen Ehrlich
                                     STEPHEN EHRLICH
                                     CHARLES E.T. ROBERTS
                                     Trial Attorneys
                                     Civil Division, Federal Programs Branch
                                     U.S. Department of Justice
                                     1100 L Street, NW
                                     Washington, DC 20005
                                     Phone: (202) 305-9803
                                     Email: stephen.ehrlich@usdoj.gov

                                     Counsel for Defendants




                                      28


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