USCA Case Number, State of West Virginia et al. v. U.S. Department of the Treasury, No. 7:21-cv-00465 (N.D. Ala.), Doc. 91 (January 24, 2022)
Summary
Filing in Case 7:21-cv-00465-LSC, Document 91, filed 01/24/22 in the Northern District of Alabama, that begins with an Eleventh Circuit clerk's letter dated January 21, 2022 for Appeal Number 22-10168-G, State of West Virginia, et al v. U.S. Department of the Treasury, et al. The letter sets deadlines for the Certificate of Interested Persons, the Civil Appeal Statement and attorney appearance forms. It attaches the district court's Final Judgment of November 15, 2021, signed by United States District Judge L. Scott Coogler. The judgment denies the Wisconsin Legislature's motion to intervene and permanently enjoins the Secretary of the Treasury from seeking enforcement of the Tax Mandate, 42 U.S.C. § 802(c)(2)(A), against the Plaintiff States.
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“USCA Case Number, State of West Virginia et al. v. U.S. Department of the Treasury, No. 7:21-cv-00465 (N.D. Ala.), Doc. 91 (January 24, 2022).”
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Case 7:21-cv-00465-LSC Document 91 Filed 01/24/22 Page 1 of 60 FILED
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U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
David J. Smith For rules and forms visit
Clerk of Court www.ca11.uscourts.gov
January 21, 2022
Michael Patrick Clendenen
U.S. Department of Justice
Civil Division
1100 L ST NW
WASHINGTON, DC 20005
Stephen Ehrlich
U.S. Department of Justice
Civil Division
1100 L ST NW
WASHINGTON, DC 20005
Charles E. T. Roberts
U.S. Department of Justice
Civil Division
1100 L ST NW
WASHINGTON, DC 20005
Appeal Number: 22-10168-G
Case Style: State of West Virginia, et al v. U.S. Department of the Treasury, et al
District Court Docket No: 7:21-cv-00465-LSC
Please use the appeal number for all filings in this court.
Electronic Filing
All counsel must file documents electronically using the Electronic Case Files ("ECF") system,
unless exempted for good cause. Non-incarcerated pro se parties are permitted to use the ECF
system by registering for an account at www.pacer.gov. Information and training materials related
to electronic filing are available on the Court's website.
Certificate of Interested Persons and Corporate Disclosure Statement ("CIP")
Every motion, petition, brief, answer, response, and reply must contain a CIP. See FRAP 26.1; 11th
Cir. R. 26.1-1. In addition:
• Appellants/Petitioners must file a CIP within 14 days after this letter's date.
• Appellees/Respondents/Intervenors/Other Parties must file a CIP within 28 days after this
letter's date, regardless of whether Appellants/Petitioners have filed a CIP.
• Only parties represented by counsel must complete the web-based CIP. Counsel must
complete the web-based CIP, through the Web-Based CIP link on the Court's website, on the
same day the CIP is first filed.
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The failure to comply with 11th Cir. Rules 26.1-1 through 26.1-4 may result in dismissal of the case
or appeal under 11th Cir. R. 42-1(b), return of deficient documents without action, or other
sanctions on counsel, the party, or both. See 11th Cir. R. 26.1-5(c).
Civil Appeal Statement
Appellants and Cross-Appellants must file a Civil Appeal Statement, which is available on the
Court's website, within 14 days after this letter's date. See 11th Cir. R. 33-1(a).
Mediation
If a Civil Appeal Statement is required to be filed, your appeal and all related matters will be
considered for mediation by the Kinnard Mediation Center. The mediation services are free, and the
mediation process is confidential. You may confidentially request mediation by calling the Kinnard
Mediation Center at 404-335-6260 (Atlanta) or 305-714-1900 (Miami). See 11th Cir. R. 33-1.
Attorney Admissions
Attorneys who wish to participate in this appeal must be properly admitted either to the bar of this
court or for this particular proceeding, See 11th Cir. R. 46-1; 46-3; 46-4. In addition, all attorneys
(except court-appointed attorneys) who wish to participate in this appeal must file an appearance
form within fourteen (14) days after this letter's date. The Application for Admission to the Bar and
Appearance of Counsel Form are available on the Court's website. The clerk generally may not
process filings from an attorney until that attorney files an appearance form. See 11th Cir. R.
46-6(b).
Defaults
Pursuant to 11th Cir. R. 42-1(b), this appeal will be dismissed after 14 days and without further
notice unless the following default(s) have been corrected:
Transcript Information Form
Pursuant to FRAP 10(b), the appellant must, within 14 days, file a Transcript Information Form,
which is available on the Court's website. See FRAP 10(b)(1); 11th Cir. R. 10-1. Unless a transcript
is ordered, the appellant's brief is due 40 days after DOCKET DATE. See 11th Cir. R. 12-1 and 31-
1.
Obligation to Notify Court of Change of Addresses
Each pro se party and attorney has a continuing obligation to notify this court of any changes to the
party's or attorney's addresses during the pendency of the case in which the party or attorney is
participating. See 11th Cir. R. 25-7.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Lee Aaron, G
Phone #: 404-335-6172
DKT-2 Appeal WITH Deficiency
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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.
NOTICE OF APPEAL
Notice is hereby given that Defendants the United States Department
of the Treasury, Janet Yellen, in her official capacity as Secretary of the Treas-
ury, and Richard K. Delmar, in his official capacity as Acting Inspector Gen-
eral of the Department of the Treasury, appeal to the United States Court of
Appeals for the Eleventh Circuit from this Court’s Judgment (Docket No. 83)
and Memorandum of Opinion (Docket No. 82) entered November 15, 2021.
1
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DATED: January 14, 2022 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/ Charles E.T. Roberts
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) 305-8628
Email: charles.e.roberts@usdoj.gov
Counsel for Defendants
2
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U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
State of West Virginia, et al., )
)
Plaintiffs, )
)
vs. ) 7:21-cv-00465-LSC
)
United States Department of )
Treasury, et al., )
)
Defendants. )
)
MEMORANDUM OF OPINION
I. Introduction
On March 31, 2021, Plaintiffs West Virginia, Alabama, Arkansas, Alaska,
Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina,
South Dakota, and Utah (hereinafter, “the Plaintiff States”) brought this action
against the United States Department of the Treasury (“Treasury”), Treasury
Secretary Janet Yellen in her official capacity (“the Secretary”), and Treasury
Inspector General Richard Delmar in his official capacity (collectively, “the
Defendants”). The Plaintiff States seek to invalidate and enjoin a provision of the
American Rescue Plan Act of 2021 (“ARPA”), Pub. L. No. 117-2, § 9901, 135 Stat.
4 (2021) (codified at 42 U.S.C. §§ 802 et seq.).
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The ARPA is a $1.9 trillion economic stimulus bill that was passed by
Congress and signed into law by President Biden on March 11, 2021. It was enacted
to hasten the United States’ recovery from the economic impact of the COVID-19
pandemic and accompanying recession. The ARPA distributes roughly $195.3 billion
directly to the States for specified purposes. 42 U.S.C. § 802(b)(3)(A). However,
before a State can receive those funds, it must certify to the Secretary that it will
comply with multiple conditions that the ARPA imposes. Id. § 802(d)(1). The
Plaintiff States contend that one of those conditions—what this opinion will refer to
as the “Tax Mandate”—exceeds Congress’s power under the Spending Clause of
Article I, Section 8 of the U.S. Constitution because it is ambiguous, coercive, and
unrelated to the ARPA’s purpose. The Plaintiff States also claim that the Tax
Mandate violates the Tenth Amendment to the U.S. Constitution and the anti-
commandeering doctrine because it intrudes into their sovereignty by prohibiting
States from reducing taxes for the next three years. Their Complaint seeks a
declaration from this Court stating as much and an order permanently enjoining
enforcement of the Tax Mandate against them. (See doc. 1).
The Court has previously entered one opinion and order in this case, denying
the Plaintiff States’ motion for a preliminary injunction of the Tax Mandate during
the pendency of this litigation. This opinion considers three motions that are
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currently pending. The Wisconsin Legislature has moved to intervene as a plaintiff
in this lawsuit. (Doc. 58.) Additionally, the existing parties have filed warring
motions, the resolution of which will conclude this litigation: the Plaintiff States’
motion for a final judgment that would declare the Tax Mandate unconstitutional
and permanently enjoin its enforcement (doc. 75) and the Defendants’ motion to
dismiss the Plaintiff States’ Complaint for lack of subject matter jurisdiction and for
failure to state a claim upon which relief may be granted (doc. 76).
After providing background information on the ARPA, the Tax Mandate, and
events that occurred after its enactment, the Court will consider whether it continues
to have subject matter jurisdiction over this action, concluding that it does. The
Court will then explain why the Wisconsin Legislature is not entitled to intervene as
a plaintiff in this action. Finally, the Court will discuss why the Plaintiff States’
motion for a final judgment and permanent injunction is due to be granted and the
Defendants’ motion to dismiss is due to be denied. Accordingly, the Court will
permanently enjoin the Secretary from seeking enforcement of the Tax Mandate
against the Plaintiff States. 1
1
This lawsuit by thirteen Plaintiff States is one of six around the country with nearly identical
complaints. Four cases have already been decided with vastly different results. In two of the four,
district courts in Missouri and Arizona dismissed the complaints, finding that those States lack of
standing. See Arizona v. Yellen, 2021 WL 3089103, at *6 (D. Ariz. July 22, 2021), appeal filed, No.
21-16227 (9th Cir. July 26, 2021); Missouri v. Yellen, 2021 WL 1889867, at *5 (E.D. Mo. May 11,
2021), appeal filed, No. 21-2118 (8th Cir. May 18, 2021). In Ohio, however, a district court ruled
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II. Background
The COVID-19 pandemic has caused ongoing economic harm to individuals,
businesses, and state and local governments. To ease the financial strain, in March
2020, Congress provided $150 billion in direct assistance for state, local, and Tribal
governments under the Coronavirus Aid, Relief, and Economic Security Act
(“CARES Act”). See Pub. L. No. 116-137, § 5001, 134 Stat. 281, 501 (2020) (codified
at 42 U.S.C. § 801). However, economic distress continued. Accordingly, on March
11, 2021, the 117th Congress passed, and President Joseph Biden signed, the ARPA,
which appropriated approximately $1.9 trillion to provide relief to address the impact
of the COVID-19 pandemic. See 42 U.S.C. § 802 et seq. Out of the roughly $1.9
trillion that the ARPA allocates for pandemic relief, around $195.3 billion is tapped
for the States. Id. § 802(b)(3)(A). These funds represent an average of about 25% of
the thirteen Plaintiff States’ annual budgets. (Doc. 1 ¶¶ 45–57.) In Arkansas, for
instance, anticipated ARPA funding represents 29% of the State’s annual budget. (Id.
that Ohio had standing to sue and granted its motion for a permanent injunction solely on the
ground that the Tax Mandate is unconstitutionally ambiguous under the Spending Clause. See Ohio
v. Yellen, 2021 WL 2712220, at *22 (S.D. Ohio July 1, 2021), appeal filed, No. 21-3787 (6th Cir.
Sept. 3, 2021). Similarly, a district court in Kentucky ruled that Tennessee and Kentucky
possessed standing, but it granted their motion for a permanent injunction solely on a different
ground: that the Tax Mandate is unconstitutionally coercive under the Spending Clause. See
Kentucky v. Yellen, 2021 WL 4394249, at *9 (E.D. Ky. Sept. 24, 2021). A lawsuit brought by Texas,
Louisiana, and Mississippi challenging the Tax Mandate remains pending. See Texas, et al. v.
Yellen, No. 2:21-cv-00079-Z (N.D. Tex.).
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¶ 117.) For West Virginia and Arkansas, it represents over 25% (id. ¶ 47, 53); for
Alabama, over 21% (id. ¶ 50); and Kansas, over 20% (id. ¶ 56).
The federal funds come with certain strings attached. To qualify for the
funding, a State must “provide the Secretary with a certification, signed by an
authorized officer of such State . . . that such State . . . requires the payment . . . to
carry out the activities specified in subsection (c) . . . and will use any payment under
this section . . . in compliance with subsection (c).” 42 U.S.C. § 802(d)(1). The
Secretary is to “make the payment required for the State . . . not later than 60 days
after the date on which th[at] certification . . . is provided to the Secretary.” Id. §
802(b)(6)(A)(i).
As the above language suggests, the conditions are set forth in subsection (c).
In that section, Congress specified that States must use ARPA funds to respond to
the negative economic impacts of the COVID-19 pandemic in one of four specific
ways: (1) providing assistance to “households, small businesses, and nonprofits”
and “impacted industries such as tourism, travel, and hospitality”; (2) responding
“to workers performing essential work during the COVID-19 public health
emergency by providing premium pay to eligible workers”; (3) making up for
pandemic-related reductions in state government revenue; and (4) paying for
“necessary investments in water, sewer, or broadband infrastructure.” Id. §
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802(c)(1)(A-D). The States must use the funds by December 31, 2024. Id. §
802(c)(1).
The ARPA also contains two restrictions on the States’ use of the federal
funds. One limitation (not challenged here) provides that a State may not deposit
ARPA funds “into any pension fund.” Id. § 802(c)(2)(B). The other limitation (the
Tax Mandate) provides as follows:
(2) FURTHER RESTRICTION ON USE OF FUNDS. —
(A) IN GENERAL. — A State or territory shall not use the funds
provided under this section or transferred pursuant to section 603(c)(4)
to either directly or indirectly offset a reduction in the net tax revenue
of such State or territory resulting from a change in law, regulation, or
administrative interpretation during the covered period that reduces
any tax (by providing for a reduction in a rate, a rebate, a deduction, a
credit, or otherwise) or delays the imposition of any tax or tax increase.
Id. § 802(c)(2)(A). The phrase “directly or indirectly offset” is not defined in the
ARPA. The ARPA requires any State that receives funds to “provid[e] a detailed
accounting” to the Secretary of “all modifications to the State’s . . . tax revenue
sources” for the covered period, as well as “such other information as the Secretary
may require for the administration of” the Tax Mandate. Id. § 802(d)(2). The
Secretary can recoup funds that she interprets were used in violation of the Tax
Mandate. Id. § 802(e)(1). The Tax Mandate’s “covered period” extends from
March 3, 2021, until all funds “have been expended or returned to, or recovered by,
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the Secretary.” Id. § 802(g)(1). The ARPA also authorizes the Secretary “to issue
such regulations as may be necessary or appropriate to carry out” the applicable
statutory provisions. Id. § 802(f).
On March 16, 2021, twenty-one State attorneys general wrote a letter to the
Secretary, seeking guidance as to the scope of the Tax Mandate. (Doc. 21–1 at 4.)
The letter listed several tax cuts proposed by legislatures in various States and asked
if those cuts would expose the States to ARPA recoupment. The letter included the
following concern:
The import of [the ARPA’s] prohibition against “offsetting”
reductions in state tax revenue is unclear, but potentially breathtaking.
This provision might have been intended merely to prohibit States from
expressly taking COVID-19 relief funds and rolling them directly into a
tax cut of a similar amount. But its prohibition on “indirectly”
offsetting reductions in tax revenue, combined with the list of
prohibited kinds of tax reductions (rate cuts, rebates, deductions,
credits, or “otherwise”), could also be read to prohibit tax cuts or relief
of any stripe, even if wholly unrelated to and independent of the
availability of relief funds. After all, money is fungible, and States must
balance their budgets. So, in a sense, any tax relief enacted by a state
legislature after the State has received relief funds could be viewed as
“using” those funds as an “offset” that allows the State to provide that
tax relief.
(Id. at 5.)
The Secretary responded on March 23, 2021, writing as follows:
Nothing in the Act prevents States from enacting a broad variety of tax
cuts. That is, the Act does not “deny States the ability to cut taxes in
any manner whatsoever.” It simply provides that funding received
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under the Act may not be used to offset a reduction in net tax revenue.
If states lower certain taxes but do not use funds under the Act to offset
those cuts—for example, by replacing the lost revenue through other
means—the [Tax Mandate] is not implicated.
(Id. at 12.) The Secretary’s letter did not respond to the States’ questions regarding
the specific tax modification proposals pending in the States.
On March 31, 2021, the Plaintiff States, believing the Tax Mandate to be
unconstitutional, sued for declaratory and injunctive relief in this Court. The
Plaintiff States alleged in their Complaint that they are or were actively considering
various forms of tax relief for individuals and small businesses, whether directly
related to state pandemic-relief efforts or through unrelated policy measures. (Doc.
1 ¶¶ 76–83.) They claim that the Tax Mandate has cast significant uncertainty over
these efforts as it is unclear whether States can pass any tax relief measures
throughout the covered period without running afoul of the Tax Mandate and thus
being forced to repay some or all of the federal funds to the Treasury. The Plaintiff
States’ Complaint alleges that the Federal Tax Mandate is unconstitutional for two
reasons: (1) it violates the Spending Clause of the U.S. Constitution by being
coercive, ambiguous, and unrelated to the ARPA’s purpose (Count 1); and (2) it
violates the Tenth Amendment to the U.S. Constitution in that it commandeers state
taxing authority (Count 2).
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On April 13, 2021, the Plaintiff States moved in this Court, pursuant to
Federal Rule of Civil Procedure 65, for an order preliminarily enjoining enforcement
of the Tax Mandate, while keeping the remainder of the ARPA intact, while this
lawsuit is pending. (Doc. 21.) The Defendants responded in opposition to the
motion, claiming that this Court does not have jurisdiction because the Plaintiff
States lack standing and their claims are not yet ripe, and that, on the merits, the
Plaintiff States failed to show that a preliminary injunction is warranted. (Doc. 54.)
The Plaintiff States, as well as numerous amici, replied in support of their motion.
(Docs. 59, 41, 42, 43, 44, and 48).
On May 13, 2021, while the motion for a preliminary injunction was still
pending, the Wisconsin Legislature moved to intervene as a Plaintiff in this lawsuit
pursuant to Federal Rule of Civil Procedure 24. (Doc. 58.) The Wisconsin
Legislature attached a Proposed Complaint in Intervention (doc. 58-1) and a
proposed motion to join in the Plaintiff States’ motion for a preliminary injunction
(doc. 58-2). The Plaintiff States consented to the Wisconsin Legislature’s request
(see doc. 58 at 2), but the Defendants opposed it (doc. 67).
On May 17, 2021, the Secretary published a 66-page Interim Final Rule
(hereinafter the “Final Rule”) in the Federal Register, which expounded on the
ARPA, including the Tax Mandate. See 86 Fed. Reg. 26786–824. Relevant here, the
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Final Rule states that “because money is fungible,” even ARPA funds “not explicitly
or directly used to cover the costs of changes that reduce net tax revenue . . . may be
used in a manner inconsistent with the statute by indirectly being used to substitute
for the State’s or territory’s funds that would otherwise have been needed to cover
the costs of the reduction.” Id. at 26807 (emphasis added).
The Final Rule creates a framework for identifying illegal offsets under the
Tax Mandate. First, every fiscal year during the covered period, States use their
ordinary budget-scoring process to “identify and value” anticipated legislative and
administrative actions that might reduce net tax revenue. Id. If there are such
reductions, the State must “pay for” them with sources other than ARPA funds. Id.
However, if the State’s covered changes are anticipated to decrease revenue by one
percent or less of the State’s 2019 inflation-adjusted revenue, the decreases are
deemed “de minimis” and will not be subject to recoupment. Id. at 26807–08. A
State also falls within a safe harbor from the Tax Mandate if its actual tax revenue
for a fiscal year exceeds its inflation-adjusted 2019 tax revenue. Id. at 26807, 26809.
If neither the de minimis exception nor the safe harbor applies, and the State’s actual
tax revenue in the reporting year is less than the State’s inflation-adjusted 2019 tax
revenue, the State will identify any sources of funds that have been used to
permissibly offset the total value of covered tax changes. Id. at 26807. These include
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any tax changes that increase tax revenue and any spending cuts in “areas” where
the State is not spending ARPA funds. Id. at 26808. The State then subtracts those
permissible offsets from the total value of revenue-reducing changes calculated in
the first step to determine what portion of the revenue-reducing changes has not
been paid for. Id. at 26807, 26809–10, 26823. The State is then potentially subject to
recoupment for that amount or the difference between the State’s actual tax revenue
and its inflation-adjusted 2019 tax revenue, whichever is greater. Id. If there are
amounts that could be subject to recoupment, the Treasury will provide notice to the
State and the State will have an opportunity to respond. Id. at 26808.
To determine which spending cuts are “covered,” the Treasury’s supervision
must extend beyond how States are spending ARPA funds to also cover how States
are spending State funds. Spending cuts in “areas” where States spent ARPA funds
are not “covered spending cuts” and thus cannot offset a decrease in revenue. Id. at
26810. Even a spending cut that a State thinks would qualify as covered in one year
may become an uncovered spending cut years later. The Treasury promises to
“monitor changes in spending throughout the covered period,” and if a spending
cut in one year is, years later, “replaced with [ARPA] Funds and used to indirectly
offset a reduction in net tax revenue resulting from a covered change, Treasury may
consider such change to be an evasion of the restrictions of the offset provision and
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seek recoupment of such amounts.” Id. Ultimately, “all relevant facts and
circumstances” are considered when the Treasury determines whether a State has
violated the Tax Mandate. Id.
On July 14, 2021, this Court denied the Plaintiff States’ motion for a
preliminary injunction. (Doc. 71; West Virginia v. U.S. Dep’t of Treasury, 2021 WL
2952863 (N.D. Ala. July 14, 2021)). With regard to the jurisdictional question, this
Court determined that the Plaintiff States alleged facts sufficient to establish
standing and that their claims are ripe because they properly alleged several different
injuries in fact: they were not offered a clear understanding of the deal that Congress
is offering because of the Tax Mandate’s ambiguity; their sovereignty was intruded
upon by having to choose between forgoing a benefit (federal funds) or accepting that
benefit on unconstitutional terms; and there is a credible threat of enforcement in
the form of a recoupment action. (Doc. 71 at 14–20.) This Court refrained from
deciding whether the Plaintiff States were likely to succeed on the merits of their
constitutional claims, instead concluding that preliminary injunctive relief was not
warranted because the Plaintiff States could not establish that a preliminary
injunction would remedy the irreparable injury they had already suffered or were
likely to suffer. This was so for several reasons. For one, recoupment of ARPA funds
is not an irreparable injury because this Court could return the funds to the Plaintiff
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States if the Secretary recouped them during the pendency of this lawsuit and this
Court ultimately invalidated the Tax Mandate. Additionally, preliminarily enjoining
the Secretary from recouping ARPA funds while this action is pending would not
have remedied the harm that the Plaintiff States claimed to suffer because they still
had to take into consideration, when deciding whether to accept ARPA funds, that
the funds would be subject to possible recoupment if this Court were to ultimately
issue a merits decision declining to invalidate the Tax Mandate. This Court noted
that the only difference in whether this Court granted or denied the motion for a
preliminary injunction was that, if the Court granted the motion, the Secretary could
not recoup funds from that point until the point that this Court decided the ultimate
issues in this case, and there was virtually no likelihood that the Secretary would
recoup ARPA funds from the Plaintiff States during that short—likely only months-
long—time frame.
Immediately after the Court denied the motion for a preliminary injunction,
the parties filed, and the Court granted, a joint motion for an expedited briefing
schedule relating to motions for final resolution of this case, acknowledging that this
dispute presents purely legal issues. On July 29, 2021, the Plaintiff States moved for
a final judgment, permanent injunction, and declaratory judgment. (Doc. 75.) In
support of their motion, the Plaintiff States provided a list of some of the revenue-
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related laws that each of the thirteen Plaintiff States has passed since the enactment
of the ARPA in March 2021. (Doc. 75-1.) The Plaintiff States also provided the
declaration of an Alabama State Senator, Greg Albritton. (Doc. 75-2.) The
Defendants responded in opposition to the Plaintiff States’ motion for a permanent
injunction and moved to dismiss the Plaintiff States’ Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1) and (6) for lack of subject matter jurisdiction and
failure to state a claim upon which relief may be granted. (Doc. 76.)
According to a joint stipulation of facts submitted by the parties, as of July 23,
2021, the following Plaintiff States have submitted to the Secretary signed
certifications under 42 U.S.C. § 802(d), agreeing to abide by the Tax Mandate, and
have received funds under the ARPA: Alabama, Arkansas, Alaska, Florida, Iowa,
Kansas, Montana, New Hampshire, Utah, and West Virginia. (Doc. 74.) Wisconsin
has done so as well, according to the Treasury in its response in opposition to the
Wisconsin Legislature’s motion to intervene. (Doc. 67 at 14.) As of August 12, 2021,
those ten Plaintiff States had received over $10.6 billion in federal funds through the
ARPA. The remaining Plaintiff States—Oklahoma, South Carolina, and South
Dakota—had not yet provided certifications to the Secretary as of August 2021.
With these factual developments in mind, the Court turns to the matters
before the Court.
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III. Discussion
A. Jurisdiction
Although the Court ruled that it has jurisdiction over this action in its earlier
opinion considering the Plaintiff States’ request for a preliminary injunction, see doc.
71 at 18–20, because the Defendants have moved to dismiss the Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction
based upon the doctrines of standing, ripeness, and mootness, this Court will once
again consider its power to hear this case. See also RES-GA Cobblestone, LLC v. Blake
Const. & Dev., LLC, 718 F.3d 1308, 1313 (11th Cir. 2013) (“Federal courts operate
under a continuing obligation to inquire into the existence of subject matter
jurisdiction whenever it may be lacking.”).
Article III of the U.S. Constitution restricts federal courts to the resolution of
“Cases” and “Controversies.” U.S. Const. art. III, § 2. “Standing is a doctrine that
‘stems directly from Article III’s “case or controversy” requirement,’ and thus it
‘implicates [this Court’s] subject matter jurisdiction.’” Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (quoting Nat’l Parks Conservation Ass’n v.
Norton, 324 F.3d 1229, 1242 (11th Cir. 2003)). Plaintiffs are required to “‘alleg[e]
such a personal stake in the outcome of the controversy’ as to . . . justify [the]
exercise of the court’s remedial powers on [their] behalf.” Simon v. E. Ky. Welfare
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Rights Org., 426 U.S. 26, 38 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 498–99
(1975)). Further, “‘a plaintiff must demonstrate standing for each claim he seeks to
press’ and ‘for each form of relief’ that is sought.” Davis v. Fed. Election Comm’n,
554 U.S. 724, 734 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006)). Standing is assessed under the facts as they existed when the complaint was
filed. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 606 n.4 (1992).
To show standing, a plaintiff must generally demonstrate that he suffered or
shall immediately suffer an injury in fact, that the injury was caused by the
defendant’s conduct, and that the injury is redressable by a favorable court decision.
See Fla. State Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1159 (11th Cir. 2008).
An injury sufficient to satisfy Article III must be “concrete and particularized” and
“actual and imminent, not ‘conjectural or hypothetical.’” Lujan, 504 U.S. at 560
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
The dispute between the parties as to standing centers on the question of
injury in fact. The Defendants assert that the Plaintiff States have not proved that
there is an imminent threat of enforcement of the Tax Mandate or that they have
suffered any other cognizable injury. 2 In contrast, the Plaintiff States contend that
2
Relatedly, the Defendants assert that the Plaintiff States’ claims are not ripe. The ripeness
inquiry requires a two-part determination of “(1) the fitness of the issues for judicial decision and
(2) the hardship to the parties of withholding court consideration.” Digital Props., Inc. v. City of
Plantation, 121 F.3d 586, 589 (11th Cir. 1997) (citing Abbott Lab. v. Gardner, 387 U.S. 136, 148–49
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they have suffered harm to their sovereign power to set tax policy since the date on
which the Tax Mandate became effective, whether or not they certify compliance
with the ARPA’s conditions or the Secretary ever initiates recoupment proceedings,
because the Tax Mandate does not define how States might use ARPA funds to
indirectly offset any net tax revenue reductions caused by a change in state law.
As this Court noted at the preliminary injunction stage, the Supreme Court
has likened Congress’s conditioning of federal money to a contract: “in return for
federal funds, the States agree to comply with federally imposed conditions.”
Pennhurst State Sch.& Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Just as a contract
requires a knowing acceptance of the offer’s terms, conditioned federal money must
“enable the States to exercise their choice knowingly, cognizant of the consequences
of” their acceptance. Id. The Court in Pennhurst continued, “There can, of course,
be no knowing acceptance if a State is unaware of the conditions or is unable to
ascertain what is expected of it. Accordingly, if Congress intends to impose a
condition on the grant of federal moneys, it must do so unambiguously.” Id. (internal
citations and footnote omitted). Taking note of this Spending Clause jurisprudence,
(1967)). “Courts must resolve ‘whether there is sufficient injury to meet Article III’s requirement
of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues
sufficiently defined and concrete, to permit effective decisionmaking by the court.’” Id. (quoting
Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995)). For the same reasons that the Plaintiff States
have standing, as discussed below, their claims are ripe.
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this Court concluded that, because Congress is required to clearly state the terms
upon which it extends an offer of conditional funding to the States, the Plaintiff
States had established that they were entitled to clarity regarding the strings attached
when presented with an offer of conditional funding. This Court ruled that such
clarity is critical to a State’s ability to exercise its sovereign prerogative of deciding
whether to accept that offer. Thus, the Court found that the Plaintiff States had
shown that they suffered an injury in fact when they were presented with an
unconstitutionally ambiguous spending condition. Further, because there is no
question that the alleged injury in fact is fairly traceable to the Tax Mandate and can
be redressed by a court order invalidating the mandate, see Browning, 522 F.3d at
1159, the Court found that the Plaintiff States possessed standing.
The Defendants present various arguments seeking a different result now, but
none has merit. First, they contend that the original harm that the Plaintiff States
claimed in filing suit—the difficulty that the Tax Mandate’s ambiguity created for
them in deciding whether to accept ARPA funding—ended for ten of the thirteen
Plaintiff States when they made the decision to certify compliance with the ARPA,
binding them to its terms. According to the Defendants, accepting the deal moots
the injury as to those ten States.
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As an initial matter, standing is measured at the time the lawsuit is filed based
on the facts as they existed at that time. Lujan, 504 U.S. at 569 n.4. Thus, the Plaintiff
States do not relinquish their standing to sue due to subsequent events. However, if
events that occur subsequent to the filing of a lawsuit deprive the court of the ability
to give a plaintiff meaningful relief, then the case is moot and must be dismissed. See,
e.g., Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam). Granted, for ten of the
Plaintiff States, one type of harm that they incurred in contemplating whether to
accept an ambiguous deal has now been extinguished in that they have made that
decision. However, these ten States continue to suffer the closely related harm to
their sovereign authority to set their own tax policies. Indeed, the Supreme Court
has long recognized the States’ sovereign authority to tax as “indispensable” to the
States’ very “existence.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 199 (1824); see also
McCulloch v. Maryland, 17 U.S. 316, 428 (1819) (“[T]he power of taxing the people
and their property[] is essential to the very existence of government.”). The Plaintiff
States have sufficiently demonstrated that their legislatures do not have sufficient
information in considering tax changes to determine the impact such changes will
have on their ability to retain the federal grant money. As stated by Alabama State
Senator Albritton in his declaration submitted by the Plaintiff States, it is crucial that
State legislatures understand the financial effects of revenue laws that they pass to
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effectively craft state budgets, and the uncertainty surrounding the Tax Mandate has
caused at least one bill in the Alabama legislature to fail despite widespread approval
by legislators and constituents, due to fear that the Secretary could interpret the
reduction as triggering a right to recoupment. (Doc. 75-2.) Thus, the Plaintiff States
have shown that they are subject to continuous and ongoing harm even if no
recoupment action ever happens because of the harm that the Tax Mandate inflicts
on the legislative process. And they are experiencing these injuries now, making
them “actual or imminent, not conjectural or hypothetical,” Lujan, 504 U.S. at 560.
Accordingly, the fact that ten Plaintiff States have now accepted the deal certainly
does not moot this Court’s ability to give them meaningful relief by way of
invalidating the Tax Mandate.
The second challenge that the Defendants present to the Plaintiff States’
standing is to stress that the evidentiary showing required to establish standing is
greater at this stage of the litigation, where final relief is sought, than it was at the
preliminary injunction stage. The burden of proof in establishing standing does
increase “with the manner and degree of evidence required at the successive stages
of litigation.” Lujan, 504 U.S. at 561. The Defendants argue that at final judgment,
that means that the Plaintiff States must provide evidence to prevail. While that may
be correct, it does not impact the Court’s earlier legal conclusion that the Plaintiff
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States have already suffered and continue to suffer an injury in fact due to being
presented with an ambiguous deal. Moreover, the Plaintiff States have bolstered
their allegations with a list of revenue-related laws passed by the thirteen States since
the ARPA’s passing as well as a declaration by a State senator. (See docs. 75-1, 75-2.)
It is unclear, and the Defendants have not suggested, what additional evidence the
Plaintiff States could or would be able to present on this front.
Finally, the Defendants resist the conclusion that the Plaintiff States have met
the injury in fact element of the standing inquiry by emphasizing their arguments
about the substantive validity of the Tax Mandate. They argue that the plain text of
the Tax Mandate does not actually prohibit States from reducing their own taxes and
that the Tax Mandate is sufficiently clear under the Supreme Court’s Spending
Clause jurisprudence because all that is required is that a recipient of federal funds
know that a condition exists, not what it means. However, while standing “often turns
on the nature and source of the claim asserted,” it “in no way depends on the merits
of the plaintiff’s contention that particular conduct is illegal.” Warth, 422 U.S. at
500. Thus, whether the Plaintiff States have standing to bring this lawsuit is not
dependent on whether their constitutional claims ultimately succeed. 3
3
The Court pauses to note that the Supreme Court has articulated an alternative method for
a plaintiff to establish the injury in fact element of the standing inquiry when that plaintiff
challenges the constitutionality of a statute that has yet to be enforced against him or her. When a
plaintiff seeks to enjoin the future enforcement of a statute, “the injury-in-fact requirement”
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In sum, the Defendants have not shown that the Court’s earlier conclusion
that the Plaintiff States have suffered an injury in fact for standing purposes was
erroneous, and they have similarly not demonstrated that the matters at hand are
moot. The Court once again concludes that it has jurisdiction over this action.
B. The Wisconsin Legislature’s Motion to Intervene
The Wisconsin Legislature—not the State of Wisconsin—seeks to intervene
as a Plaintiff in this action by right, pursuant to Federal Rule of Civil Procedure 24(a),
or, if this Court does not grant intervention by right, it requests permissive
intervention under Rule 24(b)(1)(B). Each request will be addressed in turn.
1. Intervention as of Right and Standing
Under Rule 24(a)(2), a party may intervene as a matter of right if: (1) the
application to intervene is timely; (2) the applicant has an interest relating to the
property or transaction which is the subject of the action; (3) the applicant is so
situated that the disposition of the action, as a practical matter, may impede or impair
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 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 Court found at the preliminary injunction
stage of this litigation that the Plaintiff States had also established an injury in fact under this
alternative method. However, the Court now believes that this method of establishing an injury in
fact is not well suited to the facts of this case. The Plaintiff States need not prove pre-enforcement
standing because, as previously discussed, the Plaintiff States’ injury has already occurred. In other
words, whether they are injured is not dependent on whether the Secretary enforces the Tax
Mandate against them in the future.
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his ability to protect that interest; and (4) the applicant’s interest will not be
represented adequately by the existing parties to the suit. Sierra Club, Inc. v. Leavitt,
488 F.3d 904, 910 (11th Cir. 2007). Importantly, “[a]ny party, whether original or
intervening, that seeks relief from a federal court must have standing to pursue its
claims.” Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324, 1330 (11th Cir. 2007).
“[A]n intervenor of right must demonstrate Article III standing when it seeks
additional relief beyond that which the plaintiff requests.” Town of Chester v. Laroe
Ests., Inc., 137 S. Ct. 1645, 1651 (2017); see also Little Sisters of the Poor Saints Peter &
Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2379 n.6 (2020) (“An intervenor of right
must independently demonstrate Article III standing if it pursues relief that is
broader than or different from the party invoking a court’s jurisdiction.”). This
requirement stems from the rule that “at least one plaintiff must have standing to
seek each form of relief requested in the complaint.” Laroe Ests., 137 S. Ct. at 1651.
Because the Wisconsin Legislature seeks relief not specifically sought by the
Plaintiff States—a Court order invalidating the Tax Mandate that applies to the State
of Wisconsin—the Wisconsin Legislature must establish its own standing aside from
the standing of the Plaintiff States. The Court will thus first address whether the
Wisconsin Legislature has standing to challenge the Tax Mandate before moving to
the elements of intervention as of right. See Steel Co. v. Citizens for a Better Env’t, 523
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U.S. 83, 94 (1998) (when a court lacks jurisdiction, it “cannot proceed at all in any
cause”).
The Wisconsin Legislature asserts that it seeks “to protect the interests of the
State of Wisconsin and its Legislature.” (Doc. 58 at 5.) It contends that a Wisconsin
statute authorizes it to represent the interests of the State of Wisconsin, which it
alleges is being harmed by the Tax Mandate for the same reasons that the Plaintiff
States have alleged. However, the Wisconsin Legislature cannot represent the
interests of the State of Wisconsin in this context. “[I]n the ordinary course, a
litigant must assert his or her own legal rights and interests, and cannot rest a claim
to relief on the legal rights or interests of third parties.” Hollingsworth v. Perry, 570
U.S. 693, 708 (2013) (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)). The
exception to this rule is that a party who lacks standing in their own right may
represent the State only if State law authorizes that party “to speak for the State in
federal court.” Id. at 710; see also Va. House of Delegates v. Bethune-Hill, 139 S. Ct.
1945, 1952 (2019). Wisconsin law provides:
The [Wisconsin] department of justice shall . . . appear for and
represent the state . . . and prosecute or defend in any court or before
any officer, any cause or matter, civil or criminal in which the state or
the people of this state may be interested. The joint committee on
legislative organization may intervene as permitted under § 803.09(2m)
at any time.
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Wis. Stat. § 165.25(1m). Thus, the proper entity to represent the interests of the
State of Wisconsin is the Wisconsin department of justice in all cases unless the
exception under § 803.09(2m) applies. That section states:
When a party to an action challenges in state or federal court the
constitutionality of a statute, facially or as applied, challenges a statute
as violating or preempted by federal law, or otherwise challenges the
construction or validity of a statute, as part of a claim or affirmative
defense, the assembly, the senate, and the legislature may intervene . . .
Id. § 803.09(2m). Under § 803.09(2m), the Wisconsin Legislature may intervene to
represent the State’s interests in court only to defend the validity of a Wisconsin law.
As the Wisconsin Supreme Court recently stated, “the statutory text [of §
803.09(2m)] unmistakably grants the Legislature an interest in defending the validity
of state law when challenged in court.” Democratic Nat’l Comm. v. Bostelmann, 949
N.W.2d 423, 426 (Wis. 2020) (emphasis added). See also Planned Parenthood of Wis.,
Inc. v. Kaul, 942 F.3d 793, 795 (7th Cir. 2019) (“The State of Wisconsin has chosen
to have an attorney general as its representative, but it also has recently provided a
mechanism by which its legislature . . . can intervene to defend the State’s interest
in the constitutionality of its statutes.”) (emphasis added); id. at 806 (“section
803.09(2m) reflects a sovereign policy judgment that the Attorney General is not the
State’s exclusive representative in court when state laws are challenged”) (Sykes, J.,
concurring) (emphasis added).
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That is not the case here. Here, the Wisconsin Legislature seeks to bring an
affirmative challenge to a federal statute. There is no question about the validity of
any Wisconsin statute at issue in this case. Thus, the default rule under § 165.25(1m)
applies, and the Wisconsin department of justice retains exclusive authority to
represent the State of Wisconsin.
The Wisconsin Legislature’s argument to the contrary is unavailing. It argues
that the Legislature can challenge the Tax Mandate because “a Spending Clause
penalty that is so coercive as to make the State’s passage of a contrary law prohibitive
is indistinguishable from a direct violation of state law . . . .” (Doc. 69 at 4.) Thus,
according to the Wisconsin Legislature, it is representing the State of Wisconsin’s
“interest in the validity of state laws” by challenging the Tax Mandate. See
Democratic Nat’l Comm., 949 N.W.2d at 424. The Court declines to interpret §
803.09(2m) in such a broad manner.
Because the Wisconsin Legislature cannot represent the interests of the State
of Wisconsin, it must show that it has or will suffer an injury in fact to itself as an
institution. Cf. Bethune-Hill, 139 S. Ct. at 1953 (requiring the Virginia House of
Representatives to establishing standing in its own right once it was determined that
it could not proceed as the State’s agent). The Court finds that the Legislature has
not established an injury in fact for several reasons. The Legislature asserts that the
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Tax Mandate “harms the sovereign dignity of the State of Wisconsin and its
Legislature” by being unconstitutionally vague and coercive. (Doc. 58 at 11–12
(emphasis added).) But the sovereign is the State, not its legislature. And the
ARPA’s funds are offered to the States, not to State legislatures. See 42 U.S.C. §
802(b)(3)(A) (“The Secretary shall reserve $195,300,000,000 of the amount
appropriated under subsection (a)(1) to make payments to each of the 50 States and
the District of Columbia.”). States decide whether to accept the money with strings
attached, not their legislatures, and if they accept, States must agree to refrain from
using the money in contravention of the Tax Mandate, not their legislatures. See id.
§ 802(c)(1) (“. . . a State . . . shall only use the funds provided . . .”) & (2) (“A State
. . . shall not use the funds provided under this section . . .”).
The distinction between the State and its legislature may seem minor
considering that, in practice, the legislatures certainly play a major role in setting
state fiscal policy. But, given the type of constitutional rights asserted in this case,
the difference between the two cannot be overstated. See Warth, 422 U.S. at 500
(standing turns on the “nature and source of the claim asserted”). As further
explained in the merits section of this opinion, the limits placed on Congress’s
Spending Clause power rest on concerns of federalism and the protection of our
nation’s dual system of governing. See Nat’l Fed’n of Indep. Bus. (“NFIB”) v.
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Sebelius, 567 U.S. 519, 577 (2012) (“Respecting th[e] limitation [on Congress’s
ability to secure States’ compliance with federal objectives by requiring States’
knowing and voluntary acceptance of the terms of a spending condition] is critical to
ensuring that Spending Clause legislation does not undermine the status of the States
as independent sovereigns in our federal system.”). It is the States’ unique
sovereignty that enables them to have certain rights as “offerees” of the “contracts”
Congress is authorized to extend to them pursuant to the Spending Clause. See, e.g.,
Pennhurst, 451 U.S. at 17. Thus, while a State, as the offeree of a Spending Clause
contract that is impermissibly ambiguous or coercive, can certainly claim an injury
to its sovereign interest in setting its own tax policies, it does not make sense to say
that a State legislature, which is not the offeree, can do the same. Given the
requirement that a plaintiff must have suffered a “particularized” injury, which
means that “the injury must affect the plaintiff in a personal and individual way,” see
Lujan, 560–61 n.1, it thus seems a stretch to say that a legislature can claim the same
type of harm—to its right to be offered an unambiguous condition of federal
money—that a State can.
The Supreme Court cases addressing the standing of legislative bodies, while
not directly on point, further support this Court’s conclusion that the Wisconsin
Legislature, as an institution, has not suffered an injury in fact by virtue of the Tax
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Mandate’s enactment. The Supreme Court addressed the standing of a state
legislature in Arizona State Legislature v. Arizona Independent Redistricting
Commission, 576 U.S. 787 (2015). Arizona voters adopted Proposition 106, which
amended the Arizona Constitution by removing the Arizona Legislature’s
redistricting authority and vesting it in an independent commission. Id. at 791. The
Arizona Legislature sued, alleging that Proposition 106 and the commission’s
redistricting activities deprived the Legislature of its constitutional authority over
redistricting, in violation of the Elections Clause of the U.S. Constitution. Id. at 792
(citing U.S. Const. art. I § 4, cl.1). The Supreme Court considered whether the
Arizona Legislature had alleged an injury that was sufficiently concrete to meet
Article III’s standing requirements. Id. at 799–800. The Court compared the
Legislature’s claims with the claims made in two earlier legislative standing cases,
Raines v. Byrd, 521 U.S. 811 (1997), and Coleman v. Miller, 307 U.S. 433 (1939). Id. at
801–04.
In Raines, the Supreme Court considered whether six members of Congress
had standing to challenge the constitutionality of the Line Item Veto Act after they
were outnumbered in their votes against it as a bill. 521 U.S. at 814. The Act gave the
President authority to cancel certain spending and tax benefit measures after signing
them into law. Id. The Court observed that the members of Congress did not assert
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a personal injury but instead claimed merely “a type of institutional injury (the
diminution of legislative power), which necessarily damages all Members of
Congress and both Houses of Congress equally.” Id. at 821. The nature of that injury
did not permit the members to claim a “personal stake” in the suit and the alleged
injury was not “sufficiently concrete” to establish Article III standing. Id. at 830.
On the other hand, in Coleman, the Supreme Court recognized the standing of
twenty Kansas state legislators who voted against a resolution that ultimately passed
only because the Lieutenant Governor cast a tie-breaking vote—a procedure that the
legislators argued was impermissible under Article V of the U.S. Constitution. 307
U.S. at 436. The Supreme Court stated in Raines that Coleman stands “at most . . .
for the proposition that legislators whose votes would have been sufficient to defeat
(or enact) a specific legislative Act have standing to sue if that legislative action goes
into effect (or does not go into effect), on the ground that their votes have been
completely nullified.” 521 U.S. at 823.
The Supreme Court in Arizona State Legislature concluded that its facts were
more like those in Coleman than in Raines. 576 U.S. at 803. Proposition 106 “would
‘completely nullif[y]’ any vote by the Arizona Legislature now or ‘in the future,’
purporting to adopt a redistricting plan.” Id. (quoting Raines, 521 U.S. at 823–24).
Accordingly, the Court concluded, there was a sufficiently concrete injury to the
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Arizona Legislature’s interest in redistricting that the Legislature had Article III
standing. Id.
From Arizona State Legislature, this Court derives the principle that a
legislative body may have standing as an institution so long as its claimed harm serves
to “completely nullify” its interest in taking some action that it is legally authorized
to take, “now or in the future.” See id. It is not enough that the legislature’s power
is diluted; it must be completely lost. Id. at 802–04. Here, the application of the Tax
Mandate does not nullify any actions that the Wisconsin Legislature would like to
take. It may affect them, but it does not render them meaningless. Thus, the
Wisconsin Legislature has at most alleged an “abstract dilution of institutional
legislative power,” rather than a cognizable institutional injury. See Raines, 521 U.S.
at 826. It therefore lacks standing.
If this Court were to hold differently, it would not find, in any event, that the
Wisconsin Legislature may intervene as a matter of right under Rule 24(a)(2).
Although the motion to intervene was timely, 4 the Wisconsin Legislature does not
4
To decide if a motion to intervene is timely the Court considers four factors: (1) the period
of time during which the intervenor knew of its interest in the suit before petitioning for
intervention; (2) any prejudice the resulting delay might cause the existing parties; (3) any
prejudice denial of intervention would cause the intervenor to suffer; and (4) “the existence of
unusual circumstances weighing for or against a determination of timeliness.” Comm’r, Ala. Dep’t
of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1171 (11th Cir. 2019). The Wisconsin
Legislature moved to intervene approximately six weeks after the Plaintiff States filed their
Complaint and roughly one month after they filed their motion for a preliminary injunction. At the
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have a “direct, substantial, and legally protectable” interest in the subject matter of
this litigation. Georgia v. United States Army Corps of Eng’rs, 302 F.3d 1242, 1249
(11th Cir. 2002) (“Under Rule 24(a)(2), a party is entitled to intervention as a matter
of right if the party’s interest in the subject matter of the litigation is direct,
substantial and legally protectable.”). The Eleventh Circuit has held that a legally
protectable interest “is something more than an economic interest.” United States
v. South Fla. Water Mgmt. Dist., 922 F.2d 704, 710 (11th Cir. 1991) (quotation marks
and citation omitted). “What is required is that the interest be one which the
substantive law recognizes as belonging to or being owned by the applicant.” Id.
(quotation marks and citation omitted). Thus, a legally protectable interest is an
interest that derives from a legal right. The Wisconsin Legislature has no legally
protectable interest in invalidating the Tax Mandate on constitutional grounds
because it, unlike the States, has no sovereign right to set its own tax policy.
Nor can the Wisconsin Legislature establish that its interests, if any, would be
impaired by the disposition of this action. The Wisconsin Legislature may separately
litigate, should it be able to establish its standing using some other theory of harm,
time of the Legislature’s filing, this Court had “yet to take significant action.” Georgia, 302 F.3d
at 1259–60. Furthermore, the fact that the Legislature intended to raise the same claims as the
Plaintiff States, even joining in their existing briefing, indicates that intervention would not “delay
the proceedings.” Id. Additionally, because only seven months have passed since the Wisconsin
Legislature sought to intervene, the denial of intervention will not seriously prejudice the
Wisconsin Legislature’s ability to separately litigate.
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and the Eleventh Circuit has noted that the ability to separately litigate defeats the
impairment element. See Worlds v. Dep’t of Health & Rehab. Servs., State of Fla., 929
F.2d 591, 594 (11th Cir. 1991). Finally, this Court may “presume that a proposed
intervenor’s interest is adequately represented when an existing party pursues the
same ultimate objective as the party seeking intervention.” Fed. Sav. & Loan Ins.
Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 215 (11th Cir. 1993).
Accordingly, assuming it had standing, this Court would not have allowed the
Wisconsin Legislature to intervene as of right pursuant to Rule 24(a)(2).
2. Permissive Intervention
Although the absence of standing dooms the Wisconsin Legislature’s request
to intervene as of right, that does not necessarily command the same result for its
request to intervene permissibly under Rule 24(b). It appears to be an open question
among the federal courts whether a permissive intervenor is required to possess
standing. The Supreme Court’s holding in Laroe Estates is inapposite because it
considered only Rule 24(a) intervenors as of right. See 137 S. Ct. at 1651.5 Long before
Laroe Estates, the Eleventh Circuit held in Chiles v. Thornburgh that “a party seeking
to intervene need not demonstrate that he has standing in addition to meeting the
5
The Court does note, however, that extending the holding in Laroe Estates to Rule 24(b)
permissive intervention would make sense because, without standing, proposed intervenors could
bootstrap their way into ongoing federal litigation.
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requirements of Rule 24 as long as there exists a justiciable case or controversy
between the parties already in the lawsuit.” 865 F.2d 1197, 1213 (11th Cir. 1989).
This Court need not, however, take a position on the standing requirements
for permissive intervention because the Court exercises its broad discretion to deny
the Wisconsin Legislature’s request. Rule 24(b) provides for permissive intervention
when an applicant’s claim or defense and the main action have a question of law or
fact in common and the intervention will not unduly prejudice or delay the
adjudication of the rights of the original parties. Fed. R. Civ. P. 24(b); Georgia, 302
F.3d at 1249–50. However, even if a proposed intervenor satisfies the timeliness and
common interest requirements, the court may still deny permissive intervention.
Chiles, 865 F.2d at 1213 (citation omitted). Ultimately, the decision whether a party
should be allowed to permissively intervene is left to the district court’s “full
discretionary powers.” United States v. S. Fla. Water Mgmt. Dist., 922 F.2d 704, 712
(11th Cir. 1991).
Here, several factors counsel against permissive intervention. The Wisconsin
Legislature lacks Article III standing in its own right. It also seeks relief different from
the Plaintiff States in the form of an injunction of the Tax Mandate that applies to
the State of Wisconsin, of which the Legislature is not a legal representative in this
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action. Accordingly, in the exercise of its discretion, the Court declines to permit the
Wisconsin Legislature to permissively intervene under Rule 24(b).
C. Merits
Having concluded that it has jurisdiction and determined the proper parties to
this case, the Court turns to the merits of the Plaintiff States’ constitutional
challenge. The Plaintiff States claim both that Congress exceeded its authority under
the Spending Clause as well as violated the Tenth Amendment’s grant of power to
the States and the anti-commandeering doctrine when it enacted the Tax Mandate.
Because the Court concludes that the Plaintiff States are correct on the first front, it
need not address the second. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936) (“It is not the habit of the court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.”) (quoting Burton v. United
States, 196 U.S. 283, 295 (1905)).
The U.S. Constitution empowers Congress to “lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States.” U.S. Const. Art. I, § 8, cl. 1. “Put simply,
Congress may tax and spend.” NFIB, 567 U.S. at 537. “Incident to this power,
Congress may attach conditions on the receipt of federal funds, and has repeatedly
employed the power ‘to further broad policy objectives by conditioning receipt of
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federal moneys upon compliance by the recipient with federal statutory and
administrative directives.’” South Dakota v. Dole, 483 U.S. 203, 206 (1987) (quoting
Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)).
However, Congress’s spending power is not unlimited. Dole, 483 U.S. at 207.
Although Congress can condition a State’s receipt of federal money, any such
condition must comply with several requirements. See id. at 207–08. First, the
condition must “be in pursuit of ‘the general welfare.’” Id. at 207 (quoting Helvering
v. Davis, 301 U.S. 619, 640–41 (1937)). Second, Congress must condition the States’
receipt of federal funds “unambiguously . . ., enabl[ing] the States to exercise their
choice [whether to accept federal funds] knowingly, cognizant of the consequences
of their participation.” Id. (quoting Pennhurst, 451 U.S. at 17). Third, the condition
must be reasonably related to a “federal interest in particular national projects or
programs.” Id. (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)).
Fourth, no condition attached to receipt of federal funds may violate another
provision of the U.S. Constitution. Id. at 208. Finally, the Supreme Court has
“recognized that in some circumstances the financial inducement offered by
Congress might be so coercive as to pass the point at which ‘pressure turns into
compulsion.’” Id. at 211 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590
(1937)). If a federal condition induces a State to act “not of her unfettered will, but
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under the strain of a persuasion equivalent to undue influence,” then the condition
exceeds Congress’s Spending Clause authority. Steward Mach., 301 U.S. at 590.
Federalism is the root of these limitations that are placed on Congress’s ability
to “pay for” States’ compliance with federal policies or directives. See NFIB, 567
U.S. at 577. As the Supreme Court has recognized in its Spending Clause
jurisprudence, the Federal Government possesses only enumerated powers, while
the States and the people retain the remainder. Id. at 533. See also U.S. Const., Amdt.
10. Thus, while the Federal Government “must show that a constitutional grant of
power authorizes each of its actions . . . [t]he same does not apply to the States,
because the Constitution is not the source of their power.” NFIB, 567 U.S. at 535.
“The States thus can and do perform many of the vital functions of modern
government” through their police power, “even though the Constitution’s text does
not authorize any government to do so.” Id. at 536–37. State sovereignty both
ensures that “powers which ‘in the ordinary course of affairs, concern the lives,
liberties, and properties of the people’ [are] held by governments more local and
more accountable than a distant federal bureaucracy,” id. (quoting The Federalist
No. 45, at 293 (J. Madison)), and “serves as a check on the power of the Federal
Government [and] protects the liberty of the individual from arbitrary power.” Id.
(quoting Bond v. United States, 564 U.S. 211, 222 (2011)).
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The Plaintiff States claim that the Tax Mandate is inconsistent with nearly
every Spending Clause restriction espoused in Dole, supra. First, they contend that
the mandate is unconstitutionally coercive because the amount of ARPA funding
offered to the States is so large a percentage of their annual budgets that they have
no real choice but to accept the mandate’s restriction on their sovereign taxing
powers. Second, they claim that the mandate is unconstitutionally ambiguous
because it contains no explanation as to how the Treasury will determine whether a
State has—either directly or indirectly—offset its tax cuts with ARPA funds. Thus,
the Plaintiff States state that they are unable make an informed choice of whether to
accept or decline ARPA funds, and if they accept ARPA funds, whether to cut taxes
without putting those ARPA funds at risk of being recouped by the Treasury. Third,
they contend that the mandate is not reasonably related to the purpose that the
ARPA serves—to assist in the rebound from the COVID-19 pandemic’s economic
devastation—because prohibiting state tax reductions does not advance the goal of
providing economic relief to individuals and entities affected by the pandemic.
Finally, they claim that the mandate violates an independent constitutional
provision—the Tenth Amendment, which reserves power to the States. Because the
Court concludes that the Tax Mandate is an unconstitutionally ambiguous condition
on the States’ receipt of federal funds, see Dole, 483 U.S. at 207; Pennhurst, 451 U.S.
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at 17, it need not address the Plaintiff States’ other concerns. See Ashwander, 297
U.S. at 347.
Congress must “speak with a clear voice” “[i]f [it] intends to impose a
condition on the grant of federal moneys”—that is, “it must do so unambiguously.”
Pennhurst, 451 U.S. at 17. But how much clarity is required? On the one hand, the
Supreme Court has held that the State recipient must be able to “voluntarily and
knowingly accept[] the [condition’s] terms.” Id. And there can be no “knowing
acceptance if a State is unaware of the conditions or is unable to ascertain what is
expected of it.” Id. Put another way, the State recipient must be able to “clearly
understand . . . the obligations[.]”). Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291, 296 (2006). The Eleventh Circuit has similarly stated that Congress
must “define [the] conditions clearly enough for the states to make an informed
choice.” Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004) (citing Pennhurst,
451 U.S. at 25).
On the other hand, the Supreme Court has warned that Congress need not
“prospectively resolve every possible ambiguity concerning particular applications
of a [federal grant] program’s requirements.” Bennett v. Ky. Dep’t of Educ., 470 U.S.
656, 666–69 (1985). According to the Eleventh Circuit, “once Congress clearly
signals its intent to attach federal conditions to Spending Clause legislation, it need
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not specifically identify and proscribe in advance every conceivable state action that
would be improper.” Benning, 391 F.3d at 1306 (quoting Sandoval v. Hagan, 197 F.3d
484, 495 (11th Cir. 1999), overruled on other grounds, Alexander v. Sandoval, 532
U.S. 275 (2001)). Congress must only “make the existence of the condition itself—
in exchange for the receipt of federal funds—explicitly obvious.” Id. at 1307
(quotation omitted).
The Plaintiff States argue that the language of the Tax Mandate makes it
impossible for States to “make an informed choice,” see id. at 1306, about the costs
of receiving ARPA funds because it is impossible to know how to exercise taxing
authority without putting ARPA funds at risk. The Court agrees. The Tax Mandate
does not define what it means to “directly or indirectly” offset tax cuts with ARPA
funds. See 42 U.S.C. § 802(e). Yet Congress gave the Secretary authority to recoup
ARPA funds that the Treasury deems were used by a State as a “direct or indirect”
offset. See id. Money is fungible, see Holder v. Humanitarian Law Project, 561 U.S. 1,
37 (2010), meaning “of such a nature that one part or quantity may be replaced by
another equal part or quantity in paying a debt or settling an account” or “capable
of mutual substitution: interchangeable,” http://www.mirram-
webster.com/dictionary/fungible. Thus, any ARPA funds the Plaintiff States receive
could be viewed as indirectly offsetting any reduction in net tax revenue from a
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change in state law or policy. After all, a decrease in one part of a State’s revenue is
necessarily offset somehow to achieve a balanced budget. Thus, there is no way for
the Plaintiff States to “clearly understand the[ir] obligations” if they accept ARPA
funds. See Arlington Central, 548 U.S. at 296.
The Defendants disagree, arguing that once Congress has made explicitly
clear that a condition exists, nothing else is required of it. According to the
Defendants, Congress need not explain how States might tailor their compliance with
a condition because imposing such a burden on Congress would be too onerous.
Further, the Defendants contend that the major Supreme Court and Eleventh
Circuit Spending Clause cases support their position. Although the cases may appear
to do so at first glance, a careful reading reveals the opposite to be true.
Pennhurst, the origin of the Supreme Court’s Spending Clause unambiguity
requirement, concerned the Developmentally Disabled Assistance and Bill of Rights
Act, 42 U.S.C. § 6000 et seq., a federal statute that established a grant program where
the federal government provided money to participating States to aid them in
creating programs to care for and treat the developmentally disabled. 451 U.S. at 11.
The States were given the choice of complying with a variety of conditions set forth
in the Act or foregoing the benefits of federal funding. Id. The Act also included a
“bill of rights” provision specifying that mentally disabled citizens “have a right to
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appropriate treatment, services, and habilitation for such disabilities” to be provided
“in the setting that is least restrictive of the person’s personal liberty.” Id. at 13
(quoting 42 U.S.C. § 6010). A mentally disabled resident of a Pennsylvania mental
health treatment hospital brought suit on behalf of himself and other hospital
residents against the hospital, alleging that dangerous conditions denied residents
various constitutional and statutory rights, including those enumerated in the bill of
rights provision of the Act. Id. at 6–7.
The Supreme Court had to decide whether the bill of rights provision imposed
on participating States an obligation to provide certain kinds of treatment at their
own expense by virtue of receiving the federal funds. Id. at 10. The Supreme Court
held that it did not, stating that the bill of rights provision “represent[s] general
statements of federal policy, not newly created legal duties” and “in no way suggests
that the grant of federal funds is ‘conditioned’ on a State’s funding the rights
described therein.” Id. at 23. Several factors led the Court to so conclude, including
that the bill of rights provision lacked “conditional” language and that under the Act
and the implementing regulations, funds were incapable of being withheld from
States on the basis of failure to meet the standards in the bill of rights provision. Id.
The Court also noted that the amount of money Congress granted to Pennsylvania
was “woefully inadequate” to meet the “enormous financial burden of providing
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‘appropriate’ treatment in the ‘least restrictive’ setting” as stated in the bill of rights
provision. Id. at 24 (quoting 42 U.S.C. § 1610).
The Pennhurst Court further discussed Congress’s failure to clearly express
its intent to impose a condition in the bill of rights provision:
Our conclusion is also buttressed by the rule of statutory construction
established above, that Congress must express clearly its intent to
impose conditions on the grant of federal funds so that the States can
knowingly decide whether or not to accept those funds. That canon
applies with greatest force where, as here, a State’s potential obligations
under the Act are largely indeterminate. It is difficult to know what is
meant by providing “appropriate treatment” in the “least restrictive”
setting, and it is unlikely that a State would have accepted federal funds
had it known it would be bound to provide such treatment. The crucial
inquiry, however, is not whether a State would knowingly undertake
that obligation, but whether Congress spoke so clearly that we can fairly
say that the State could make an informed choice. In this case, Congress
fell well short of providing clear notice to the States that they, by
accepting funds under the Act, would indeed be obligated to comply
with § 6010.
Id. at 24–25.
The Defendants contend that Pennhurst is distinguishable from this case
because, in Pennhurst, the Supreme Court had to decide whether a condition existed
in the first place, but here, there is no question that the Tax Mandate exists as a
condition to States accepting ARPA funds. Indeed, in Pennhurst, the requirement
that Congress express unambiguously “its intent to impose conditions on the grant
of federal funds” was to keep Congress from “surprising participating States with
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post-acceptance or retroactive conditions.” NFIB, 567 U.S. at 584 (quoting
Pennhurst, 451 U.S. at 25). Yet merely because Pennhurst stands for the proposition
that Congress must clearly state its intent to impose a condition does not mean that
Congress need not also define the condition sufficiently so that States can know how
to comply with it. To the contrary, Pennhurst requires Congress to speak “so clearly
that . . . the State[s can] make an informed choice.” 451 U.S. at 25. Pennhurst does
not undermine the Plaintiff States’ position that the Tax Mandate does not meet that
standard.
The Defendants further contend that the Eleventh Circuit’s decision in
Benning v. Georgia forecloses the Plaintiff States’ claim that the Tax Mandate is
ambiguous. Benning concerned whether Congress violated the Spending Clause in
enacting section 3 of the Religious Land Use and Institutionalized Person’s Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1, which requires state prisons that receive
federal funds to refrain from burdening the religious exercise of prisoners. 391 F.3d
1299, 1303 (11th Cir. 2004). A Georgia prison system inmate and self-proclaimed
“Torah observant Jew” sued Georgia and the Georgia Department of Corrections
alleging that they violated the RLUIPA by denying his requests for a kosher diet and
for permission to wear a yarmulke. Id. Georgia moved to dismiss the suit, arguing
among other things that section 3 of RLUIPA was an unconstitutional violation of
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Congress’s Spending Clause power. Id. Section 3 provides that government actions
that substantially burden the religious exercise of institutionalized persons must
satisfy the “strict scrutiny” standard: the action must be in “furtherance of a
compelling government interest” and must be “the least restrictive means of
furthering that compelling governmental interest.” Id. at 1304 (quoting 42 U.S.C. §
2000cc-1). Georgia argued that section 3 is ambiguous, contrary to Pennhurst, in four
ways, one of which was that Georgia could not know in any particular case whether
its actions satisfied the requirements of the strict scrutiny standard. Id. at 1305.
The Eleventh Circuit rejected Georgia’s argument, pointing out that the strict
scrutiny standard, which has “long applied to the states in disputes regarding the
free exercise of religion,” was “not new to Georgia or any state.” Id. at 1306 (citing
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1236–37 (11th Cir. 2004)).
The court found that RLUIPA’s flexibility in giving States “wide latitude in applying
its provisions” does not make the statute “opaque.” Id. It stated, “once Congress
clearly signals its intent to attach federal conditions to Spending Clause legislation,
it need not specifically identify and proscribe in advance every conceivable state
action that would be improper.” Id. (quoting Sandoval, 197 F.3d at 495).
Although Georgia relied upon Pennhurst in supporting its argument that
section 3 of the RLUIPA is ambiguous, the Eleventh Circuit distinguished Pennhurst,
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stating, “The federal law in Pennhurst was unclear as to whether the states incurred
any obligations at all by accepting federal funds, but RLUIPA is clear that states incur
an obligation when they accept federal funds, even if the method for compliance is
left to the states. Pennhurst does not require more.” Id. at 1307. Recognizing that the
Ninth and Seventh Circuits had reached the same conclusion in similar cases, the
Eleventh Circuit continued:
In Mayweathers [v. Newland, 314 F.3d 1062 (9th Cir. 2002)], the Ninth
Circuit stated, “Congress is not required to list every factual instance
in which a state will fail to comply with a condition. Such specificity
would prove too onerous, and, perhaps, impossible. Congress must,
however, make the existence of the condition itself—in exchange for
the receipt of federal funds—explicitly obvious.” 314 F.3d at 1067. The
Seventh Circuit explained, “Congress permissibly conditioned the
receipt of federal money in such a way that each State is made aware of
the condition and is simultaneously given the freedom to tailor
compliance according to its particular penological interests and
circumstances.” Charles [v. Verhagen], 348 F.3d [601,] 608 [(7th Cir.
2003)]. No federal appellate court has held otherwise, and we decline
to be the first.
Id.
There are several reasons why Benning does not foreclose the Plaintiff States’
ambiguity argument. For one thing, the ARPA’s Tax Mandate is nothing like a
Congressional spending condition that prohibits States from discriminating based on
an individual’s religion, as was the case in Benning. Although the strict scrutiny
standard may result in different applications among the courts, there is no question
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that the RLUIPA expressly conditions the receipt of federal money upon States’
refraining from creating substantial burdens on prisoners’ religious rights that are
not justified by a compelling governmental interest and are not furthered by the least
restrictive means possible. See 42 U.S.C. § 2000cc-1(a). As the Plaintiff States say,
every lawyer is familiar with that standard. In contrast, the Tax Mandate that
Congress crafted provides no guidance on critical interpretive questions. It does not
tell States how they can avoid being found to have indirectly offset a net tax revenue
reduction with ARPA funds. There is thus no way for States to comply with the
ARPA by looking to the text of the provision itself. In other words, the condition is
not “define[d] . . . clearly enough,” which dooms it under Benning. 391 F.3d at 1306.
Additionally, the Court is cautious not to read Benning as applying too far
outside the scope of spending conditions that prohibit unlawful discrimination. See
Benning, 391 F.3d at 1306 (“The Supreme Court has explained that so long as a
spending condition has a clear and actionable prohibition of discrimination, it does not
matter that the manner of that discrimination can vary widely.”) (emphasis added).
Indeed, all of the cases that Benning relies upon in support of the conclusion that
Congress need not identify in advance very State action that may be improper
address spending clause legislation related to federal nondiscrimination statutes. See
Benning, 391 F.3d at 1306–07 (citing Sandoval, 197 F.3d at 495 (spending condition
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prohibited discrimination on the basis of national origin in violation of Title VI of the
Civil Rights Act of 1964); Davis v. Monroe County Bd. of Edu., 526 U.S. 629, 651
(1999) (spending condition prohibited student-on-student sexual harassment in
violation of Title IX of the Education Amendments of 1972); Mayweathers, 314 F.3d
at 1067 (the same RUILPA spending condition prohibiting religious discrimination
that was the subject of Benning); Charles, 348 F.3d at 607–08 (same)). The common
denominator in these cases is that they addressed statutes, like the RLUIPA, that
“follow[] in the footsteps of a long-standing tradition of federal legislation that seeks
to eradicate discrimination and [are] ‘designed to guard against unfair bias and
infringement on fundamental freedoms.’” Charles, 348 F.3d at 607 (quoting
Mayweathers, 314 F.3d at 1067)). The Eleventh Circuit in Benning recognized the
importance of Congress’s ability to place conditions on its offers of federal funds to
States in this area:
[T]he United States has a substantial interest in ensuring that state
prisons that receive federal funds protect the federal civil rights of
prisoners. . . .
Congress has a strong interest in making certain that
federal funds do not subsidize conduct that infringes
individual liberties, such as the free practice of one’s
religion. The federal government also has a strong interest
in monitoring the treatment of federal inmates housed in
state prisons and in contributing to their rehabilitation.
Congress may allocate federal funds freely, then, to
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protect the free exercise of religion and to promote
rehabilitation. . . .
Mayweathers, 314 F.3d at 1067; see also Charles, 348 F.3d at 608–09.
Benning, 391 F.3d at 1307.6 Simply put, the Federal Government’s paramount
interest in protecting individuals from discrimination that was present in Benning is
simply not present in this case. See Pennhurst, 451 U.S. at 18 (reminding courts to
“look to the provisions of the whole law, and to its object and policy,” in determining
whether Congress intended to impose a condition). To the contrary, the Federal
Government has no interest in proscribing state tax policy. Yet the Tax Mandate
dictates more than what States do with federal funds; it dictates what States do with
State funds as well. The Tax Mandate’s restriction on direct or indirect state tax cuts
pressures States into adopting a particular—and federally preferred—tax policy.
The inherent ambiguity in the text of the mandate may disincentive the Plaintiff
States from considering any tax reductions for fear of forfeiting ARPA funds. This is
a federal invasion of State sovereignty that was just simply not at issue in Benning.
Accordingly, the Court finds no precedential authority that would proscribe
6
The Benning court made these statements in response to Georgia’s argument that the
federal grants for its prisons were unrelated to the objective of the RLUIPA in contravention of
Dole’s requirement that any condition Congress imposes on the States’ receipt of federal funds be
related to a particular federal interest. See id.
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its ruling today that Congress exceeded its Spending Clause authority in crafting an
unconstitutionally ambiguous spending condition in the Tax Mandate.
Having determined that the Tax Mandate falls short of the clarity required
when Congress exercises its powers under the Spending Clause, the Court must now
determine what effect, if any, the Final Rule has on the Tax Mandate’s failure—as
enacted—to meet that requirement. Although the issuance of the Final Rule raises
the question whether an administrative regulation can provide the clarity needed for
a statutorily ambiguous spending condition to pass muster under the Spending
Clause jurisprudence, little discussion is ultimately needed on this point. This is
because the Defendants appear to concede that, assuming that the language of the
Tax Mandate is itself unconstitutionally ambiguous, the Final Rule cannot cure that
ambiguity. (See Doc. 76 at 32 (“Both sides agree that agencies cannot impose funding
conditions that Congress itself has not attached. . . . Defendants are not asking the
Court to defer to the [Final] Rule because Plaintiffs have not challenged it.”)).
It bears noting, however, that the Final Rule still fails to define how a State
“indirectly offsets” spending cuts with ARPA funds. A State, for example, can cut
taxes so long as decreases in revenue are counterbalanced by “[s]pending cuts in
areas not being replaced by [ARPA] Funds.” 86 Fed. Reg. at 26808. But the Rule
does not define “areas.” And because the Final Rule “provides benefits across
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several areas” due to the breadth with which ARPA funds can be used, id. at 26816,
few “areas” of State spending will be suitable candidates for spending cuts that could
offset a decrease in revenue. Further, the Treasury has multiple years during which
it can assess whether “a spending cut is subsequently replaced with [ARPA] Funds
and used to indirectly offset a reduction in net tax revenue resulting from a covered
change.” Id. at 26810. Thus, a spending cut in 2021 followed by a use of ARPA funds
in 2023 could later be deemed “an evasion of the restrictions of the offset provision”
that would entitle Treasury to recoupment. Id. In short, the Final Rule still leaves
States guessing as to how they may exercise their sovereign power to tax.
D. Remedies
Having found that the Tax Mandate exceeds Congress’s power under the
Constitution, the Court now turns to the remedies sought by the Plaintiff States. The
Plaintiff States request both declaratory relief and a permanent injunction enjoining
the Secretary from enforcing the Tax Mandate provision of the ARPA against the
thirteen Plaintiff States.
1. Permanent Injunction
A plaintiff who has demonstrated success on the merits is entitled to a
permanent injunction if: (1) it “suffered an irreparable injury”; (2) the “remedies
available at law, such as monetary damages, are inadequate to compensate for that
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injury”; (3) the “balance of hardships between the plaintiff and the defendant”
justify an equitable remedy; and (4) “the public interest would not be disserved by a
permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
The Plaintiff States satisfy each factor. First, the Tax Mandate has and will
continue to inflict irreparable injury on the Plaintiff States, who are all either faced
with or bound by an unconstitutionally ambiguous “deal” that is intruding on each
State’s ability to exercise its “indispensable” sovereign power to tax. See Gibbons,
22 U.S. at 199. Second, the States cannot sue the federal government for damages.
See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign
immunity shields the Federal Government and its agencies from suit.”). Thus, since
their harms are not redressable through damages, “the remedies available at law”
are “inadequate.” eBay, 547 U.S. at 391. Third, the balance of hardships favors the
States, which have a strong interest in not having their sovereign authority impinged
by an unconstitutional law, while the Defendants have no legitimate interest in
enforcing that law. Additionally, given the limited scope of the permanent
injunction, the Defendants will be free to enforce every other provision of the ARPA.
Fourth, an injunction will promote the public interest because “the public . . . has no
interest in enforcing an unconstitutional law.” Scott v. Roberts, 612 F.3d 1279, 1297
(11th Cir. 2010).
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A permanent injunction is proper in this case, as enjoining the enforcement of
the Tax Mandate against the Plaintiff States alleviates the constitutional harm.
2. Declaratory Relief
The Declaratory Judgment Act provides a federal court with jurisdiction over
“a case of actual controversy” the authority to “declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further
relief is or could be sought. Any such declaration shall have the force and effect of a
final judgment or decree and shall be reviewable as such.” 28 U.S.C. § 2201(a).
“The Declaratory Judgment Act is ‘an enabling Act, which confers a discretion on
courts rather than an absolute right upon the litigant.’” Ameritas Variable Life Ins.
Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005) (quoting Wilton v. Seven Falls Co.,
515 U.S. 277, 287 (1995)). “It only gives the federal courts competence to make a
declaration of rights; it does not impose a duty to do so.” Id. (citing Brillhart v. Excess
Ins. Co. of America, 316 U.S. 491, 494 (1942)). Here, because a permanent injunction
fully rectifies the Plaintiff States’ harm, the Court need not also issue a declaratory
judgment.
IV. Conclusion
For the aforementioned reasons, the Plaintiff States’ motion for a final
judgment and permanent injunction is due to be granted, and the Defendants’
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motion to dismiss the complaint is due to be denied. A separate order consistent with
this opinion will be issued.
DONE and ORDERED on November 15, 2021.
_____________________________
L. Scott Coogler
United States District Judge
160704
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U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
State of West Virginia, et al., )
)
Plaintiffs, )
)
vs. ) 7:21-cv-00465-LSC
)
United States Department of )
Treasury, et al., )
)
Defendants. )
)
FINAL JUDGMENT
As discussed in the accompanying Memorandum of Opinion, the following
rulings are hereby made:
1) the Wisconsin Legislature’s motion to intervene as a plaintiff in
this action (doc. 58) is hereby DENIED;
2) the Plaintiff States’ motion for a final judgment in their favor
(doc. 75) is hereby GRANTED;
3) Defendant, the Secretary of the Treasury, is hereby
PERMANENTLY ENJOINED from seeking enforcement of
the Tax Mandate, 42 U.S.C. § 802(c)(2)(A), against the Plaintiff
States;
4) given that injunction, the Plaintiff States’ request for declaratory
relief (as argued in doc. 75) is hereby DENIED;
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5) Defendants’ motion to dismiss this action (doc. 76) is hereby
DENIED.
Only to the extent provided by law are costs taxed against the Defendants.
DONE and ORDERED on November 15, 2021.
_____________________________
L. Scott Coogler
United States District Judge
160704
2
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