Response in Opposition to Motion, State of West Virginia et al. v. U.S. Department of the Treasury, No. 7:21-cv-00465 (N.D. Ala.), Doc. 54 (May 7, 2021)
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Defendants' opposition to Plaintiffs' motion for preliminary injunction in State of West Virginia, et al. v. U.S. Department of the Treasury, Case No. 7:21-cv-00465-LSC, in the U.S. District Court for the Northern District of Alabama, Western Division, filed May 7, 2021 (Doc. 54). The introduction states that Congress appropriated nearly $200 billion in new funding for state governments in the American Rescue Plan Act, and that the 13 Plaintiff States challenge the offset provision as unconstitutionally "coercive". Defendants argue that Plaintiffs lack Article III standing, that their claims are not ripe, and that any injunctive relief should be limited to Plaintiffs. The conclusion asks that Plaintiffs' motion be denied. The signature block names Stephen Ehrlich, with /s/ Stephen Ehrlich, dated May 7, 2021.
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“Response in Opposition to Motion, State of West Virginia et al. v. U.S. Department of the Treasury, No. 7:21-cv-00465 (N.D. Ala.), Doc. 54 (May 7, 2021).”
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Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 1 of 43 FILED
2021 May-07 PM 08:53
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, et al., Case No. 7:21-cv-00465-LSC
Plaintiffs,
v.
U.S. DEPARTMENT OF THE
TREASURY, et al.,
Defendants.
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION
Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 2 of 43
TABLE OF CONTENTS
INTRODUCTION ......................................................................................1
BACKGROUND.........................................................................................5
A. Statutory Background ..............................................................5
B. Factual and Procedural Background.........................................8
LEGAL STANDARDS ................................................................................8
ARGUMENT..............................................................................................9
I. Plaintiffs Lack Article III Standing.....................................................9
II. Plaintiffs are Not Likely To Succeed on the Merits........................... 15
A. Congress validly exercised its Spending Clause authority
to restrict the use of Rescue Plan funds................................... 16
B. The Rescue Plan is not coercive .............................................. 21
C. The Rescue Plan provides clear notice of the funding
condition. ............................................................................... 26
III. The Balance Of Harms And The Public Interest Preclude a Pre-
liminary Injunction.......................................................................... 29
IV. Any Injunctive Relief Should Be Limited to Plaintiffs. ..................... 32
CONCLUSION ........................................................................................ 33
i
Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 3 of 43
TABLE OF AUTHORITIES
CASES
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ................................................................................ 14
Abbott v. Perez,
138 S. Ct. 2305 (2018)............................................................................. 13
ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd.,
557 F.3d 1177 (11th Cir. 2009)................................................................ 11
ACLU of Ky. v. McCreary Cnty.,
354 F.3d 438 (6th Cir. 2003) ................................................................... 30
Alaska v. U.S. Dep’t of Transp.,
868 F.2d 441 (D.C. Cir. 1989) ................................................................. 13
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S. 592 (1982) ................................................................................ 13
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) ................................................................................ 27
Armstrong v. Exceptional Child Ctr., Inc.,
575 U.S. 320 (2015) ................................................................................ 13
Babbitt v. Farm Workers,
442 U.S. 289 (1979) ............................................................................ 9, 11
Bennett v. Kentucky Department of Education,
470 U.S. 656 (1985) ................................................................ 19, 25, 27, 28
Benning v. Georgia,
391 F.3d 1299 (11th Cir. 2004)...........................................................19, 28
Bucklew v. Precythe,
139 S. Ct. 1112 (2019)............................................................................. 16
ii
Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 4 of 43
Charles v. Verhagen,
348 F.3d 601 (7th Cir. 2003) ................................................................... 28
Citizens Bank of Md. v. Strumpf,
516 U.S. 16 (1995) .................................................................................. 17
City of Los Angeles v. Barr,
929 F.3d 1163 (9th Cir. 2019).................................................................. 26
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666 (1999) ...........................................................................15, 25
Cunningham v. Adams,
808 F.2d 815 (11th Cir. 1987).................................................................. 31
Cutter v. Wilkinson,
423 F.3d 579 (6th Cir. 2005) ................................................................... 28
Daimler Chrysler Corp. v. Cuno,
547 U.S. 332 (2006) ................................................................................ 33
Davis ex rel. Lashonda D. v. Monroe Cnty. Bd. of Educ.,
526 U.S. 629 (1999) ................................................................................ 28
South Dakota v. Dole,
483 U.S. 203 (1987) ................................................................ 15, 19, 23, 25
Fac. Senate of Fla. Int’l Univ. v. Winn,
616 F.3d 1206 (11th Cir. 2010)................................................................ 14
Georgia v. Pruitt,
326 F. Supp. 3d 1356 (S.D. Ga. 2018) ...................................................... 13
Gill v. Whitford,
138 S. Ct. 1916 (2018)............................................................................. 33
Greater Birmingham Ministries v. Alabama,
161 F. Supp. 3d 1104 (N.D. Ala. 2016)......................................................9
Gruver v. La. Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll.,
959 F.3d 178 (5th Cir. 2020) ................................................................... 23
iii
Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 5 of 43
Hobson v. Fischbeck,
758 F.2d 579 (11th Cir. 1985).................................................................. 30
J.R. v. Hansen,
803 F.3d 1315 (11th Cir. 2015)................................................................ 16
Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) ................................................................................ 28
Kansas v. United States,
214 F.3d 1196 (10th Cir. 2000)................................................................ 21
Kansas v. United States,
249 F.3d 1213 (10th Cir. 2001)................................................................ 13
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ............................................................................ 9, 13
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ................................................................................ 33
Marks v. United States,
430 U.S. 188 (1977) ................................................................................ 23
Maryland v. King,
567 U.S. 1301 (2012) ..................................................................4, 7, 13, 32
Massachusetts v. EPA,
549 U.S. 497 (2007) ................................................................................ 13
Massachusetts v. Mellon,
262 U.S. 447 (1923) ...........................................................................12, 13
Mayhew v. Burwell,
772 F.3d 80 (1st Cir. 2014).................................................................20, 23
Mayweathers v. Newland,
314 F.3d 1062 (9th Cir. 2002).................................................................. 28
Mazurek v. Armstrong,
520 U.S. 968 (1997) ................................................................................ 29
iv
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Miss. Comm’n on Env’t Quality v. EPA,
790 F.3d 138 (D.C. Cir. 2015) ................................................................. 23
Munaf v. Geren,
553 U.S. 674 (2008) ..................................................................................9
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ......................................................................... passim
Nat’l Park Hosp. Ass’n v. Dep’t of Interior,
538 U.S. 803 (2003) ................................................................................ 14
Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville,
896 F.2d 1283 (11th Cir. 1990)................................................................ 29
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977) .............................................................................. 32
New York v. United States,
505 U.S. 144 (1992) ................................................................ 19, 23, 25, 26
Nken v. Holder,
556 U.S. 418 (2009) ..................................................................................9
Oklahoma v. U.S. Civ. Serv. Comm’n,
330 U.S. 127 (1947) ................................................................................ 18
Pennhurst State School & Hospital v. Halderman,
451 U.S. 1 (1981)...............................................................................26, 28
Pub. Serv. Comm’n of Utah v. Wycoff Cnty.,
344 U.S. 237 (1952) ................................................................................ 15
Rimini St., Inc. v. Oracle USA, Inc.,
139 S. Ct. 873 (2019) .............................................................................. 17
Rosen v. Cascade Int’l, Inc.,
21 F.3d 1520 (11th Cir. 1994).................................................... 4, 29, 30, 32
S.C. Dep’t of Educ. v. Duncan,
714 F.3d 249 (4th Cir. 2013) ................................................................... 21
v
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Sabri v. United States,
541 U.S. 600 (2004) ...........................................................................18, 22
Sampson v. Murray,
415 U.S. 61 (1974) .................................................................................. 31
Siegel v. LePore,
234 F.3d 1163 (11th Cir. 2000).................................................. 4, 29, 30, 31
Steward Mach. Co. v. Davis,
301 U.S. 548 (1937) ..................................................................... 22, 23, 25
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) ............................................................................ 9, 11
Swain v. Junior,
961 F.3d 1276 (11th Cir. 2020).............................................................. 8, 9
Swain v. Junior,
958 F.3d 1081 (11th Cir. 2020)..................................................................9
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ................................................................... 13
Trump v. New York,
141 S. Ct. 530 (2020) .............................................................................. 14
U.S. Nutraceuticals, LLC v. Cyanotech Corp.,
769 F.3d 1308 (11th Cir. 2014)................................................................ 10
United States v. Morrison,
529 U.S. 598 (2000) ................................................................................ 16
United States v. Oakland Cannabis Buyers’ Coop.,
532 U.S. 483 (2001) ..................................................................................4
United States v. Rivera,
613 F.3d 1046 (11th Cir. 2010)................................................................ 14
Van Wyhe v. Reisch,
581 F.3d 639 (8th Cir. 2009) ................................................................... 28
vi
Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 8 of 43
Voisine v. United States,
136 S. Ct. 2272 (2016)............................................................................. 17
Walters v. Nat’l Ass’n of Radiation Survivors,
468 U.S. 1323 (1984) .............................................................................. 32
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008) ................................................................................ 16
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008).................................................................................... 29
STATUTES
20 U.S.C. § 241e ........................................................................................ 20
42 U.S.C. § 801............................................................................................5
42 U.S.C. § 802................................................................................... passim
42 U.S.C. § 803............................................................................................5
Coronavirus Aid, Relief, and Economic Security Act,
Pub. L. No. 116-137, 134 Stat. 281 (2020) (codified at 42 U.S.C. § 801).......5
American Rescue Plan Act,
Pub. L. No. 117-2, 135 Stat. 4 (2021) ..................................................... 1, 5
U.S. CONSTITUTION
U.S. Const. art. I, § 8 ................................................................................. 15
OTHER AUTHORITIES
Black’s Law Dictionary (11th ed. 2019) ..................................................... 17
Office of Information and Regulatory Affairs, Office of Management &
Budget, Regulatory Review Status,
https://www.reginfo.gov/public/do/eoDetails?rrid=166315............ 7, 8
vii
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Treasury Statement on State Fiscal Recovery Funds and Tax
Conformity (Apr. 7, 2021),
https://go.usa.gov/xHW6R...................................................................7
Yellen Ltr. to State Attorneys General (Mar. 23, 2021),
https://go.usa.gov/xHW65 ...................................................................7
viii
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INTRODUCTION
As part of the American Rescue Plan Act, Pub. L. No. 117-2, 135 Stat. 4
(2021) (“Rescue 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 di-
rected to a broad variety of state efforts to respond to the public health emer-
gency created by the COVID-19 pandemic and to its economic effects, in-
cluding by funding state-level government services and by providing assis-
tance to households, small businesses, and industries. Id. § 802(c). To ensure
that the new federal funds would be used for the broad categories of state
expenditures it identified, Congress specified that States cannot use the fed-
eral 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 straightfor-
ward 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).
In seeking a preliminary injunction, the 13 Plaintiff States argue that
this provision is unconstitutionally “coercive” because it “abrogate[s]” the
States’ “sovereign tax authority.” Mem. in Supp. of Prelim. Inj. (“PI Mot.”)
10, ECF No. 21. Plaintiffs’ motion, however, suffers from multiple jurisdic-
tional defects and rests on a fundamental misunderstanding of both the chal-
lenged statute and the governing law.
First, the challenged statute. By its plain text, the offset provision ad-
dresses only a reduction in a State’s “net tax revenues.” 42 U.S.C.
§ 802(c)(2)(A) (emphasis added). A State is thus free to change its tax law as
it believes appropriate, cutting some taxes and increasing others. And even
1
Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 11 of 43
if a State chooses to make changes that result in a reduction in net tax reve-
nue, the Act bars a State only from using Rescue Plan funds—as opposed to
other means—to offset that reduction. Id. The Act also makes clear that if a
State chooses to use Rescue Plan funds to offset a reduction in net tax reve-
nue resulting from changes in state law, the only consequence would be a
loss of monies commensurate with the amount of federal funding used for
that offset. See id. § 802(e).
Second, the law. As an initial matter, Plaintiffs lack Article III standing
because they have not enacted any tax cut, let alone alleged that any hypo-
thetical tax cut under consideration will decrease net tax revenue or that
Plaintiffs plan or intend to use Rescue Plan funds to offset that theoretical
reduction. Because Plaintiffs have not alleged any intention to use the fed-
eral funds in a way not permitted under the Act, they lack standing to chal-
lenge the offset provision. Relatedly, the States’ challenge is not ripe. The
only consequence of Plaintiffs using Rescue Plan funds to pay for a reduction
in net tax revenue would be potential recoupment of the amount of Rescue
Plan funds used for an impermissible offset. Because Plaintiffs have not al-
leged conduct that could result in recoupment, and the Treasury Depart-
ment has not indicated any imminent plans to recoup from the Plaintiff
States, their claims are not ripe. Particularly given the extraordinary nature
of Plaintiffs’ request for pre-enforcement injunctive relief based on the pur-
ported unconstitutionality of a federal statute, it is especially critical to en-
sure that they have satisfied the jurisdictional prerequisites for this suit.
Nor are Plaintiffs 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
2
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purpose, it may place conditions on a State’s acceptance of the funds to en-
sure 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. Con-
gress 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.
The Supreme Court’s decision in NFIB underscores Plaintiffs’ 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 allot-
ment of preexisting Medicaid funding. See 567 U.S. 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 categories 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 governs only the State’s use of the new
funds provided by the Act, and there is no threat to preexisting funds if
States decline the Rescue Plan’s generous outlay of federal money. Indeed,
the Rescue Plan’s offset provision is far less restrictive than the ACA provi-
sion that NFIB indicated was permissible. In addition to placing only new
conditions on new funds, the Rescue plan—unlike the provision at issue in
NFIB—does not put States to an all-or-nothing choice. If a State receiving
funds under the Act chooses to reduce its net tax revenue and offset that
3
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reduction with Rescue Plan funds, its federal grant would be reduced only
to the extent it uses Rescue Plan funds to offset that reduction.
Plaintiffs also cannot demonstrate likely irreparable harm, a showing
that is indispensable for a preliminary injunction. Siegel v. LePore, 234 F.3d
1163, 1176–77 (11th Cir. 2000) (en banc). Even if Plaintiffs were able to estab-
lish a cognizable injury for purposes of standing, they do not come close to
demonstrating irreparable harm. Indeed, their motion describes the bulk of
their alleged harm as “long-term,” not imminent. PI Mot. 28. And if Plain-
tiffs were to accept the conditioned funding, use that funding to offset a re-
duction in net tax revenue, and face potential recoupment by the Secretary,
any such recoupment proceedings would present an “adequate remedy at
law” where they could fully present defenses and objections. Rosen v. Cas-
cade Int’l, Inc., 21 F.3d 1520, 1527 (11th Cir. 1994). Even if Plaintiffs were un-
able to succeed in such hypothetical future proceedings, the result would
simply be repaying money—the quintessential example of harm that is not
irreparable—demonstrating beyond doubt that the States are not entitled to
the extraordinary remedy of injunction at this stage. See id.
By contrast, enjoining an Act of Congress would unquestionably im-
pose 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) (emphasizing that “a court sitting in equity cannot ignore the judg-
ment 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 effec-
tuating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.” (citation omitted)). Plaintiffs’ motion should be denied.
4
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BACKGROUND
A. Statutory Background
In March 2020, Congress enacted the Coronavirus Aid, Relief, and Eco-
nomic Security Act (“CARES Act”). See Pub. L. No. 116-137, § 5001, 134 Stat.
281, 501 (2020) (codified 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,” al-
locating another $220 billion to broadly “mitigate the fiscal effects” of the
pandemic on States, territories, and Tribal governments 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
Coronavirus Disease 2019 (COVID–19) or its negative economic
impacts, including assistance to households, small businesses,
and nonprofits, or aid to impacted industries such as tourism,
travel, and hospitality;
5
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(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 workers who perform es-
sential work;
(C) for the provision of government services to the extent of the
reduction in revenue of such State, territory, or Tribal govern-
ment 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 emergency; or
(D) to make necessary investments in water, sewer, or broad-
band infrastructure.
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 “gov-
ernment 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 nega-
tive economic effects, to support essential workers during the pandemic, and
to invest in certain infrastructure areas. Id. § 802(c)(1)(A), (B), (D).
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) pro-
vides 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 rel-
evant part that a State:
shall not use the funds provided under [§ 802] . . . to either di-
rectly or indirectly offset a reduction in the net tax revenue of
6
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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.
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 “reduc-
tion 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 ini-
tial guidance, the Treasury Department has not yet issued its implementing
regulations. See Yellen Ltr. to State Attorneys 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.
And the Secretary will provide further guidance imminently through an in-
terim final rule. See Office of Information and Regulatory Affairs, Office of
Management & Budget, Regulatory Review Status (last visited April 30,
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).
7
Case 7:21-cv-00465-LSC Document 54 Filed 05/07/21 Page 17 of 43
2021), https://www.reginfo.gov/public/do/eoDetails?rrid=166315. Once
the Treasury Department issues the regulations, a State may receive federal
funds after providing a certification (in a form the agency will provide) in-
dicating 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 administer the Act. Id.
§ 802(d)(2).
B. Factual and Procedural Background
On March 31, 2021, 13 States brought this suit alleging that the offset
provision of § 802(c)(2)(A) is unconstitutional. Compl. ¶¶ 1–5, ECF No. 1.
West Virginia, Alabama, Arkansas, and Kansas expect to receive between $1
billion and $2.5 billion under the Rescue Plan. Id. ¶¶ 45–56. There is little
information about the remaining nine state Plaintiffs, except that they “an-
ticipate receiving similar amounts.” Id. ¶ 57. Plaintiffs nowhere allege that
they have enacted changes in state law during the covered period that would
reduce net tax revenue, or that they intend to use Rescue Plan funds to offset
any hypothetical reduction in net tax revenue. See generally id. ¶¶ 1–131.
Plaintiffs nonetheless request immediate relief to enjoin “enforcement of”
the offset provision. See PI Mot. 30.
LEGAL STANDARDS
“A preliminary injunction is an extraordinary remedy never awarded
as of right.” Swain v. Junior, 961 F.3d 1276, 1284–85 (11th Cir. 2020) (citations
omitted). “In order to obtain one,” Plaintiffs “must establish four separate
requirements”: (1) they have “a substantial likelihood of success on the mer-
its”; (2) “irreparable injury will be suffered unless the injunction issues”;
(3) “the threatened injury to the movant[s] outweighs whatever damage the
8
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proposed injunction may cause the opposing party”; and (4) “if issued, the
injunction would not be adverse to the public interest.” Id. (citation omitted).
Where, as here, “the government is the party opposing the preliminary in-
junction, its interest and harm merge with the public interest.” Swain, 958
F.3d at 1091 (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). And Plaintiffs
can only obtain the “extraordinary and drastic remedy” of a preliminary in-
junction if they “clearly carr[y] the burden of persuasion” on all the prereq-
uisites. Greater Birmingham Ministries v. Alabama, 161 F. Supp. 3d 1104, 1113
(N.D. Ala. 2016) (Coogler, J.) (citations omitted).
ARGUMENT
I. PLAINTIFFS LACK ARTICLE III STANDING.
In assessing the Plaintiff States’ request for preliminary relief, this
Court must determine whether they have established jurisdiction, including
Article III standing. Munaf v. Geren, 553 U.S. 674, 691 (2008). To satisfy the
“irreducible constitutional minimum” of standing, the States 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) (citation
omitted). When a plaintiff seeks to enjoin the future enforcement of a statute,
“the injury-in-fact requirement” demands that the plaintiff “allege[] ‘an in-
tention to engage in a course of conduct arguably affected with a constitu-
tional 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));
see id. at 161–67 (analyzing the three elements separately). In other words,
the prospect of enforcement must be “sufficiently imminent” to create a con-
crete injury. Id. at 159.
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Plaintiffs cannot meet that standard because their asserted injuries are
hypothetical and speculative. The complaint and preliminary-injunction
motion are silent as to how the States intend to use Rescue Plan funds, no-
where even suggesting that they plan to use them in a manner inconsistent
with the offset provision. Under that provision, a State may not use the new
federal funds to offset a reduction in net tax revenue that results from
changes in state law. 42 U.S.C. § 802(c)(2)(A). But the Plaintiffs do not allege
that any State has enacted any tax cuts, let alone tax cuts that would (taken
together with any tax increases) reduce net tax revenue. Although the States
list a number of tax changes that are under consideration, Compl. ¶¶ 76–83,
they do not allege or even hint that any State intends to use Rescue Plan
funds to offset any reductions in its net tax revenue that might result from
any changes a State ultimately chooses to adopt. The States are “the prover-
bial master of [their] complaint” and must take responsibility for the allega-
tions included—or not included—therein. U.S. Nutraceuticals, LLC v. Cyano-
tech Corp., 769 F.3d 1308, 1314 (11th Cir. 2014) (holding that a complaint can-
not be “rewritten to include allegations [that plaintiffs] did not mention”).
Indeed, the States’ allegations about injury demonstrate the hypothet-
ical and speculative nature of their suit. See, e.g., PI Mot. 14 (“If the best in-
terpretation is that the [offset provision] covers every change . . . then Con-
gress passed a statute with startling breadth . . . .” (emphasis added)); PI
Mot. 29 (describing potential state tax law changes as “unknown” at this
time); Compl. ¶¶ 63, 66 (arguing that the statute is “open to speculation” or
“interpretation”); id. ¶¶ 67–68 (“A State may not know” offset provision’s
impact for some time and eventually “could be penalized.” (emphases
added)); id. ¶¶ 75, 77, 86, 91 (relying on similar uncertainties, rather than any
impending harm); PI Mot. 6 (same). “The allegation of standing requires
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specification, not imagination,” so Plaintiffs’ mere theories of possible harm
do not suffice. ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177,
1197 (11th Cir. 2009).
The State legislatures’ various tax-reduction proposals do not
strengthen the Plaintiffs’ position. See PI Mot. 6. The States do not even
contend either that those tax-law propsals will decrease net tax revenue or
that any State intends to use Rescue Plan funds to offset such hypothetical
reductions. See, e.g., Compl.¶ 77 (“It is not clear whether these changes
would run afoul of the [offset provision].”).2 Merely proposing a tax cut is
not itself the “course of conduct arguably affected with a constitutional in-
terest” and “proscribed by a statute” required for pre-enforcement standing.
Driehaus, 573 U.S. at 159 (quoting Babbitt, 442 U.S. at 298). Nor is adopting a
tax cut on its own. The offset provision restricts only a State’s using Rescue
Plan funds to offset a reduction in net tax revenue resulting from a change
in state law; it does not prohibit the proposal or adoption of any tax change
on its own.
Unable to demonstrate that the Rescue Plan restricts any conduct that
the Plaintiff States intend to undertake, let alone that any recoupment is im-
minent, the States assert a general intrusion on their “sovereign interests.”
Compl. ¶ 9; see PI Mot. 27–29. In doing so, Plaintiffs fundamentally misun-
derstand the Rescue Plan. The Act provides States with a broad outlay of
2 Nor would the 2018 Iowa tax law, as described in the complaint, violate the offset
provision. See Compl. ¶ 79. Any reduction in net tax revenue resulting from the changes
“required” if “certain triggers based on the level and growth of net general fund reve-
nues” from the 2018 law are met, id., would be “resulting from a change in law” before the
offset provision’s “covered period,” not “during the covered period.” 42 U.S.C.
§ 802(c)(2)(A); see supra Note 1 (covered period begins March 3, 2021). And any amend-
ment to the 2018 tax law during the covered period has not occurred, may not reduce net
tax revenue, and may never be offset by Rescue Plan funds.
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federal funds and considerable flexibility in how to use those funds to ad-
dress 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
in 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 Res-
cue Plan to offset a reduction in net tax revenue. No State has a sovereign
interest in using federal funds for that purpose. And each State, of course,
remains free to decline the funds.
Plaintiffs’ reliance on their 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 “ab-
stract questions . . . of sovereignty.” 262 U.S. 447, 485 (1923). There, Con-
gress had enacted through the Spending Clause a maternity program that
permitted States to accept funding to protect the health of mothers and in-
fants 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 “imposed upon the [S]tates an illegal and unconsti-
tutional option either to yield to the federal government a part of their re-
served rights or lose their share of the moneys appropriated.” Id. at 482. The
Supreme Court held that the State’s “naked contention that Congress has
usurped the reserved powers of the several [S]tates 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 “actually invaded or threatened” by “the actual
or threatened operation of the statute,” id. at 485—precisely what Plaintiffs
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have failed to demonstrate here. The States relatedly claim injury to their
“‘power to create and enforce a legal code’” and “secur[e] observance of the
terms under which [they] participate[] in the federal system.” Compl. ¶¶ 9–
10 (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601, 608
(1982)); see PI Mot. 27–28 (citing 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, Plaintiffs have 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 the States cite to establish a cognizable injury
only underscore its absence here. See PI Mot. 27. Several decisions ad-
dressed concrete injuries, not present here, to state interests. See Texas v.
United States, 809 F.3d 134, 155 (5th Cir. 2015) (“financial loss”); Kansas v.
United States, 249 F.3d 1213, 1227 (10th Cir. 2001) (territorial interests); Geor-
gia v. Pruitt, 326 F. Supp. 3d 1356, 1367 (S.D. Ga. 2018) (territorial interests).
Other decisions addressed whether a defined state statute had been
preempted by federal law, see Armstrong v. Exceptional Child Ctr., Inc., 575
U.S. 320, 326-27 (2015); Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443 (D.C.
Cir. 1989), or standing premised on a “procedural right” not alleged here,
Massachusetts v. EPA, 549 U.S. 497, 517–18 (2007). As discussed, 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
conceivable,” but rather requires “a factual showing of perceptible harm.”
(citation omitted)).
For similar reasons, even if the Plaintiff States had Article III standing,
their challenge to the offset provision would not be ripe. “Ripeness is a jus-
ticiability doctrine designed ‘to prevent the courts, through avoidance of
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premature adjudication, from entangling themselves in abstract disagree-
ments 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
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)).
Plaintiffs’ claimed harm here rests on the potential recoupment of
some Rescue Plan funds from the States. See PI Mot. 12, 17. Their motion
even describes the bulk of their alleged harms as “long-term.” PI Mot. 28.
But “this kind of uncertain sanction is not ripe for [] judicial review.” United
States v. Rivera, 613 F.3d 1046, 1050 (11th Cir. 2010); 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, the States would need to submit certifications that they plan to
accept Rescue Plan funds, receive those funds from the Treasury Depart-
ment, and enact changes in state tax laws that might implicate the offset pro-
vision. Even then, only if a State’s net tax revenues fell, and only if that State
decided to use Rescue Plan funds to offset that reduction, would recoupment
even be possible.
There must be some “concrete action applying [Treasury’s] regulation
to [a State’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; see Fac. Senate of Fla. Int’l Univ. v. Winn, 616 F.3d 1206, 1209 n.8 (11th Cir.
2010) (“[A] final conclusion on that issue can await a post-enforcement, as-
applied challenge on a less speculative record than exists here.”). Particu-
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larly given the extraordinary nature of the Plaintiffs’ request for a pre-en-
forcement preliminary injunction based on the purported unconstitutional-
ity of a federal statute, it is especially critical to ensure that the jurisdictional
prerequisites for this suit are satisfied. See Pub. Serv. Comm’n of Utah v.
Wycoff Cnty., 344 U.S. 237 (1952).
II. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS.
On the merits, Plaintiffs have not come close to demonstrating that
Congress exceeded the bounds of its Spending Clause authority. The Con-
stitution 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
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 must use this 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. Spending Clause conditions also must not
violate “other constitutional provisions” or, in certain circumstances, be “co-
ercive.” 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, Plaintiffs contend that the offset provision exceeds these
limitations and therefore is not a valid exercise of Congress’s Spending
Clause authority and violates the Tenth Amendment. PI Mot. 8–28. As
noted above, Plaintiffs do not claim that any particular state enactment will
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lead to recoupment; Plaintiffs instead challenge the condition as a facial mat-
ter. The States therefore bear a significant burden to demonstrate that the
offset provision is “unconstitutional in all its applications”: they “must show
that there is no set of circumstances under which the law would be valid.”
Bucklew v. Precythe, 139 S. Ct. 1112, 1127 (2019); J.R. v. Hansen, 803 F.3d 1315,
1320 (11th Cir. 2015) (citation omitted); 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 decisions of a coordinate
branch of Government demands that [courts] invalidate a congressional en-
actment only upon a plain showing that Congress has exceeded its constitu-
tional bounds.” United States v. Morrison, 529 U.S. 598, 607 (2000). Here,
Congress has validly exercised its Spending Clause authority, and Plaintiffs’
contentions have no merit.
A. Congress validly exercised its Spending Clause authority to re-
strict the use of Rescue Plan funds.
The Rescue Plan is a lawful exercise of Congress’s Spending Clause
authority. Designed 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 District of Columbia. 42 U.S.C.
§ 802(b)(2)(A), (c)(1). With that funding, States have considerable 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).
Unsurprisingly, Congress sought to ensure that its 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. Id. § 802(c)(2)(A).
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The offset provision is, by any measure, a modest restriction on an oth-
erwise generous outlay of federal funds. By its plain terms, the offset provi-
sion applies only when a State uses Rescue Plan funds to “offset” a reduction
in “net” tax revenue resulting from changes in state law. Id. That restriction
is not implicated if reductions in some taxes are balanced with increases in
others because no “net” tax revenue reduction would then occur. A State
also does not transgress the limitation if it does not “use” Rescue Plan funds
to “offset” a reduction in net tax revenue. Id. The term “use” connotes “vo-
litional” “active employment” of federal funds. Voisine v. United States, 136
S. Ct. 2272, 2278–79 (2016). And the term “offset” means “[t]o balance” or
“compensate for.” Offset, Black’s Law Dictionary (11th ed. 2019). Contrary
to Plaintiffs’ suggestion, PI Mot. 12–13, the Act’s reference to States “directly
or indirectly” offsetting a reduction in net tax revenue does not alter the stat-
utory meaning. Both “directly” and “indirectly” are adverbs that cannot “al-
ter the meaning of 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 tax reduction. If
Congress had sought to prohibit every reduction in taxes, PI Mot. 14, it could
have said so explicitly and concisely.
Taken together, the offset provision’s language simply ensures that
States are not employing federal funds to finance state tax cuts that decrease
net tax revenue. 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). For example, assuming no other changes, a State could not receive $2
billion in Rescue Plan funds, cut its income tax by an amount equal to $2
billion, and use the Rescue Plan funds to offset the revenue loss. That would
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be using Rescue Plan Funds to “directly” offset a reduction in net tax reve-
nue. 42 U.S.C. § 802(c)(2)(A). Similarly, again assuming no other changes, a
State could not use Rescue Plan funds to replace $2 billion in planned state
expenditures on COVID-19 testing and then use the $2 billion it had origi-
nally budgeted for that purpose to offset a $2 billion reduction in state in-
come tax. That would be using Rescue Plan Funds to “indirectly” offset a
reduction in net tax revenue. Id. But States routinely offset reductions in net
tax revenue by other means. And even if a State impermissibly uses Rescue
Plan funds to offset a reduction in net tax revenue, the consequence is pro-
portional to the misuse: the State would be required to repay only the por-
tion 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 has an overriding interest in ensuring that the new
Rescue Plan funds will be used for the broad categories of state expenditures
it identified and not others Congress chose not to support. See Sabri v. United
States, 541 U.S. 600, 608 (2004) (“The power to keep a watchful eye on ex-
penditures . . . is bound up with congressional authority to spend in the first
place.”); Oklahoma v. U.S. Civ. Serv. Comm’n, 330 U.S. 127, 143 (1947) (explain-
ing that Congress has the “power to fix the terms upon which its money al-
lotments to [S]tates shall be disbursed”). This is evident from the offset pro-
vision itself, which is titled “[f]urther restriction on use of funds” and only
applies to a State’s “use [of] the funds provided under this section.” 42 U.S.C.
§ 802(c)(2) (emphasis added).
Plaintiffs contend that the Rescue Plan’s conditions on the use of funds
are not related to the funding program. PI Mot. 15–20. But it is difficult to
imagine how they could be more related to the funding program because
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they specify the uses to which a State may and may not devote the federal
funds. That sort of statutory condition is by definition “germane[]” because
it ensures that federal funds are used for the public-health and economic-
recovery “federal purposes” of the spending program. Dole, 483 U.S. at 207.
Congress acted well within its Spending Clause authority by both describing
broad categories of permissible uses and proscribing certain narrow uses.
This more than satisfies the “minimal standard of rationality” required of
Spending Clause legislation. Benning v. Georgia, 391 F.3d 1299, 1308 (11th
Cir. 2004); see New York v. United States, 505 U.S. 144, 172 (1992) (finding fund-
ing conditions sufficiently related where “both the conditions and the pay-
ments embody Congress’ efforts to address the pressing problem of radio-
active waste disposal”); Dole, 483 U.S. at 208–09 (finding that the federal in-
terest in a uniform drinking age was sufficiently germane to States’ receipt
of highway funds). The offset provision simply ensures that Rescue Plan
funds “are spent according to [Congress’s] view of the ‘general Welfare.’”
NFIB, 567 U.S. at 580.
Other Spending Clause legislation illustrates that the Rescue Plan and
its offset provision advance a valid federal purpose: provisions that require
States to maintain their existing fiscal efforts as a condition of receiving fed-
eral funds are an uncontroversial and familiar exercise of Congress’s spend-
ing 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 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
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used to replace state and local funds that otherwise would have been spent
for participating children, Congress amended Title I in 1970 to require that
Title I funds be used “to supplement and, to the extent practical, 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 Ken-
tucky programs had violated that provision, and the Secretary of Education
required Kentucky to repay the federal funds that had been misused. 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 assurances were not complied with, the Federal Government is
entitled to recover amounts spent contrary to the terms of the grant agree-
ment.” 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 stat-
utes. For example, in Mayhew v. Burwell, 772 F.3d 80, 82 (1st Cir. 2014), the
First Circuit upheld the Affordable Care Act’s requirement that States ac-
cepting Medicaid funds maintain their state-level Medicaid eligibility stand-
ards 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 Education Act, which generally requires the
Secretary to reduce a State’s grant by the amount the State has failed to main-
tain spending for special education for children with disabilities); Kansas v.
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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 re-
quired 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 particular 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 con-
sistent 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.
Plaintiffs not dispute that Congress generally can prohibit States from
using federal grants to fund state tax cuts, and they do not argue that they
have 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. But
they nevertheless urge that the offset provision is “coercive” and an intru-
sion on their sovereign taxing authority. PI Mot. 9–12.
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As an initial matter, Plaintiffs’ coercion argument rests on a mischar-
acterization of the offset provision. Id. As explained above, this provision
simply limits a State’s ability to “use” Rescue Plan funds to “offset” a reduc-
tion in “net tax revenue” resulting from changes in state law. See Section
II.A., supra. Plaintiffs are thus wrong to insist that the offset provision some-
how “compel[s] [States] to abrogate sovereign tax authority for potentially
more than three years.” PI Mot. 10.
Plaintiffs’ coercion argument is also based on a fundamental misun-
derstanding of 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 congressional 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 how federal funds are used, “[i]n such cir-
cumstances, if in no others, inducement or persuasion 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
210; 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,
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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).
Plaintiffs’ heavy reliance on the Supreme Court’s decision in NFIB is
also misplaced. See PI Mot. 9–11. Unlike the statute challenged here, the
Affordable Care Act provision at 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 popula-
tion. In the controlling opinion for the Court, the Chief Justice recognized
that Congress could “make adjustments to the Medicaid program as it de-
veloped”—including by altering the conditions on existing funds—but rea-
soned that the adult eligibility expansion “accomplishe[d] a shift in kind, not
merely degree,” because it conditioned the receipt of old and new funds on a
State’s agreement to establish a fundamentally different program. NFIB, 567
U.S. at 583. 3 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 Medicaid funds.” Id. at 579–80 (citation omitted).
By contrast, the Supreme Court made clear that Congress could make
the entirety of the new federal funds provided by the ACA—totaling $100
billion per year, see id. at 576—contingent on a State’s adoption of that new
3 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 n.5; 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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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 stat-
ute’s fundamental 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 participate in that new program by taking away their existing Medicaid
funding.” Id. (emphases added).
The reasoning of NFIB forecloses Plaintiffs’ argument that the offset
provision is coercive. The only funds regulated by the offset provision are
the funds that Congress appropriated as part of the Rescue Plan itself. See
42 U.S.C. § 802(a)–(c). And unlike NFIB, States do not suffer the “penalty”
of losing 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 a re-
duction in net tax revenue that results from changes in state law) is no more
“coercive” than any restriction on the receipt of federal funds that the Su-
preme 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 mod-
est than the prospective funding condition that NFIB indicated was permis-
sible. A State’s receipt of funds under the Rescue Plan is not an all-or-noth-
ing proposition dependent on compliance with the offset provision. As ex-
plained above, the Act provides 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
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funds used for the offset. See 42 U.S.C. § 802(e)(1). And, again, there is no
threat to preexisting funds if States decline the Rescue Plan’s generous outlay
of federal money.
Finally, Plaintiffs’ effort to characterize the offset provision as imper-
missible commandeering under the Tenth Amendment should also be re-
jected. PI Mot. 21–27. 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.” NFIB, 567 U.S.
at 578; Coll. Sav. Bank, 527 U.S. at 686 (same); Dole, 483 U.S. at 207 (same). So
the inquiry under both the Spending Clause and the Tenth Amendment is
whether the challenged “provision is inconsistent with the federal structure
of our Government established by the Constitution.” New York, 505 U.S. at
177; NFIB, 567 U.S. at 578–79. And because nothing in the Act “force[s] the
States to implement a federal program,” NFIB, 567 U.S. at 578–79, Plaintiffs’
commandeering argument fails.
In cases like this one—where “a State has a legitimate choice whether
to accept the federal conditions in exchange 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 Con-
gress encourages state regulation rather than compelling it . . . state officials
remain accountable to the people.”). If the Plaintiff States dislike the funding
condition, or any other provision of the Act, they are free to decline the gen-
erous federal aid in whole or in part. Their voters know where to turn if they
like, or dislike, the States’ choice.
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C. The Rescue Plan provides clear notice of the funding condi-
tion.
Plaintiffs fare no better in urging that the offset provision is unconsti-
tutionally ambiguous. PI Mot. 11–15. In Pennhurst State School & Hospital v.
Halderman, the Supreme Court declared that “if Congress intends to impose
a condition on the grant of federal moneys, it must do so unambiguously.”
451 U.S. 1, 17, 24 (1981). But that is not an onerous requirement: Congress
must provide only “clear notice to the States that they, by accepting funds
under the Act, would indeed be obligated to comply with” certain condi-
tions. Id. at 25. The idea is simply to keep Congress from “surprising par-
ticipating 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 con-
ditions, the details of those conditions can be set out in agency guidance or
regulations that specify the parameters 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 Education Act—
the Court observed that, “[g]iven the structure of the grant program, the Fed-
eral Government simply could not prospectively resolve every possible am-
biguity concerning 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 oppor-
tunity to seek clarification of the program requirements,” id., and that “if the
State was uncertain” as to its obligations, “it could have sought clarification
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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 con-
ditions on the use of funds (§ 802(c)), requires States to certify that they will
use the funds for the intended purposes and to report those 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 im-
plement its provisions by regulation. Id. § 802(f).
These provisions give a state official deciding whether to accept Res-
cue Plan funds 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 re-
sulting from changes in state law—and that the Rescue Plan will be imple-
mented through Treasury regulations. “Nothing more is required under
Pennhurst, which held that Congress need provide no more than ‘clear no-
tice’ to the [S]tates that funding is conditioned upon compliance with 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).
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Plaintiffs attempt to demonstrate ambiguity by posing hypothetical
questions. PI Mot. 13–14. But “Congress is not required to list every factual
instance in which a [S]tate will fail to comply with a condition”—a task that
would be potentially “impossible.” Mayweathers v. Newland, 314 F.3d 1062,
1067 (9th Cir. 2002); Van Wyhe v. Reisch, 581 F.3d 639, 650 (8th Cir. 2009)
(“[S]etting forth every conceivable variation in the statute is neither feasible
nor required.”); see Bennett, 470 U.S. at 666 (explaining that “every improper
expenditure” need not be “specifically identified and proscribed” in the stat-
ute); Jackson, 544 U.S. 167 at 183 (same); Davis, 526 U.S. at 650 (same). Con-
gress 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) (distinguish-
ing situations where a statute is “unclear as to whether the [S]tates incurred
any obligations at all by accepting federal funds” (emphasis added)); 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 required.” (emphasis added and citations omitted)). The
offset provision easily clears that bar.
Even if the bar were higher, it would make no difference. The Rescue
Plan provides 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 Sec-
tion II.A., supra. As the Supreme Court has repeatedly confirmed, more par-
ticularized questions that arise in the course of implementing the Act can be
addressed by Treasury regulations, see 42 U.S.C. § 802(f), and by other for-
mal or informal guidance.
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III. THE BALANCE OF HARMS 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). The Plaintiff States are not entitled to this “extraordinary remedy”
because they cannot establish that any is “likely to suffer irreparable harm
in the absence of preliminary relief.” Id. at 20; see Siegel v. LePore, 234 F.3d
1163, 1176–77 (11th Cir. 2000) (en banc) (holding that the “absence of a sub-
stantial likelihood of irreparable injury would, standing alone, make prelim-
inary injunctive relief improper”). Plaintiffs’ burden to show irreparable
harm is higher than what is required to establish standing. See, e.g., Ma-
zurek v. Armstrong, 520 U.S. 968, 972 (1997). Even if Plaintiffs were able to
establish standing, they fail to establish irreparable harm. The States cite no
imminent plan to reduce net tax revenue or use Rescue Plan funds to offset
that reduction. So the States’ alleged harms are simply not “imminent”
enough to warrant the relief they seek. Siegel, 234 F.3d at 1176 (quoting Ne.
Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d
1283, 1285 (11th Cir. 1990)). Indeed, their motion characterizes their primary
alleged harms as “long-term.” PI Mot. 28.
Importantly, “[i]t is axiomatic that equitable relief is only available
where there is no adequate remedy at law.” Rosen v. Cascade Int’l, Inc., 21
F.3d 1520, 1527 (11th Cir. 1994) (adding that “cases in which the remedy
sought is the recovery of money damages do not fall within the jurisdiction
of equity”). Even if a Plaintiff State were to accept the conditioned Rescue
Plan funding and nonetheless use those funds to offset a reduction in net tax
revenue (potentially facing recoupment by Treasury), the State would have
an “adequate remedy at law” in any recoupment proceeding. Rosen, 21 F.3d
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at 1527; see, e.g., Hobson v. Fischbeck, 758 F.2d 579, 581 (11th Cir. 1985) (holding
equitable relief unavailable because plaintiff “has an adequate remedy at
law—he could pay the disputed tax and then sue for a refund”). Instead,
Plaintiffs attempt to short-circuit any recoupment premised on their inter-
pretation of the offset provision. But the potential recoupment action is
where the States should make their arguments. With such action nowhere
in sight, their challenge is premature and no injunction should issue.
Despite all this, Plaintiffs argue that the offset provision could inflict
“long-term” irreparable injury by interfering with “States’ sovereign and
constitutional authority to tax.” PI Mot. 28. As discussed above, however,
the Rescue Plan’s conditions do not intrude on state sovereign interests or
essential functions—either now or in the future. See Section I., supra.
The States suggest that the Court should “presume irreparable injury
in cases where a ‘constitutional right is being threatened or impaired.’” PI
Mot. 28 (quoting ACLU of Ky. v. McCreary Cnty., 354 F.3d 438, 445 (6th Cir.
2003)). But Plaintiffs have not established any constitutional violation. See
Section II., supra. And in any event, it is unsurprising that they reach “out-
side the Eleventh Circuit” for such a presumption, PI Mot. 28, because this
Circuit’s “case law has not gone that far,” Siegel, 234 F.3d at 1177. “The only
areas of constitutional jurisprudence where [this Circuit has] said that an on-
going violation may be presumed to cause irreparable injury involve the
right of privacy and certain First Amendment claims.” Id. at 1178; cf. PI Mot
27–28 (citing cases on “right to privacy,” “right to free speech,” and “right to
vote”). “This is plainly not such a case.” Siegel, 234 F.3d at 1178. Here, the
States are concerned that they might someday need to repay money received
under the Act. Such future harm would categorically fail to qualify as irrep-
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arable because it can be “undone through monetary remedies” for improp-
erly recouped funds, if any. Cunningham v. Adams, 808 F.2d 815, 821 (11th
Cir. 1987). Indeed, courts have routinely characterized the potential loss of
money as a quintessential example of harm that is not irreparable. See, e.g.,
Sampson v. Murray, 415 U.S. 61, 90 (1974).
To allege “more immediate” irreparable harm, Plaintiffs argue—with-
out any citations whatsoever—that “certification under this ambiguous and
overbroad provision could subject the Plaintiff States to unknown penalties
based on an unknown set of state legislative or administrative actions.” PI
Mot. 28–29. 4 But Treasury has not yet published the § 802(d) certification
that States will use to obtain Rescue Plan funds. And Plaintiffs have not even
alleged any change in law during the covered period that will result in lower
net tax revenues, let alone imminently; nor have they alleged that any State
will use Rescue Plan funds to offset any such reduction. Even if they did,
the penalties are not “unknown”: if a State chooses to use Rescue Plan funds
to offset a reduction in net tax revenue, 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). Again, such recoupment proceedings would provide
Plaintiffs both ample opportunity to raise their arguments and an “adequate
remedy at law.” Rosen, 21 F.3d at 1527.
2. Plaintiffs are on no firmer ground in urging that an injunction
against enforcement of the offset provision “will not harm Defendants—or
anyone else for that matter,” on the theory that “[i]njunctive relief does not
4 It bears noting that what the States acknowledge are an “unknown set of state
legislative or administrative actions” that may or may not result in reductions in net tax
revenue that may or may not then be offset using Rescue Plan funds that may or may not
then be subject to recoupment by the Secretary is precisely why Plaintiffs also lack stand-
ing and their pre-enforcement facial challenge is not ripe. PI Mot. 29; see Section I., supra.
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delay or threaten distribution of ARPA funds, nor interfere with any indi-
vidual’s or entity’s use of that relief.” PI Mot. 30. In other words, Plaintiffs
simultaneously assert that an intrusion on its own sovereign interests (if it
existed) would constitute irreparable injury, but that enjoining an Act of
Congress would not constitute irreparable injury to the federal government.
The Supreme Court takes a different view. “The presumption of con-
stitutionality which attaches to every Act of Congress is not merely a factor
to be considered in evaluating success on the merits, but an equity to be con-
sidered 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). “[A]ny time a [government] is enjoined by a court from effectu-
ating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.” King, 567 U.S. at 1303 (Roberts, C.J., in chambers) (quot-
ing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351
(1977)). 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 economic and public-
health emergency of historic proportions.
IV. ANY INJUNCTIVE RELIEF SHOULD BE LIMITED TO PLAINTIFFS.
If this Court were to enjoin any aspect of the Rescue Plan (and the
Court should not), that injunction should apply only to Plaintiffs. “The
Court’s constitutionally prescribed role is to vindicate the individual rights
of the people appearing before it.” Gill v. Whitford, 138 S. Ct. 1916, 1933
(2018). Thus, the “plaintiff’s remedy must be tailored to redress the plain-
tiff’s particular injury.” Id. at 1934 (citing Daimler Chrysler Corp. v. Cuno, 547
U.S. 332, 353 (2006)). And principles of equity independently require that
injunctions be no broader than “necessary to provide complete relief to the
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plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (cita-
tion omitted). Indeed, Plaintiffs have no serious interest in whether other
States are subject to the offset provision during the pendency of this lawsuit,
and they would be fully redressed through a preliminary injunction prohib-
iting the Treasury Department from “enforcing” the Rescue Plan against
only the state Plaintiffs in this case.
CONCLUSION
For the reasons explained above, Plaintiffs’ motion should be denied.
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DATED: May 7, 2021 Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
BRIAN D. NETTER
Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
BRIGHAM J. BOWEN
Assistant Director, Federal Programs Branch
/s/ Stephen Ehrlich
MICHAEL P. CLENDENEN
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
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