ACLJ Files Brief in Federal Appeals Court on Behalf of 64 Members of the U.S. Senate and U.S. House in Lawsuit Against Biden’s Unconstitutional Mandate Barring States From Lowering Taxes

By 

Jordan Sekulow

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April 1

5 min read

Radical Left

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Since taking office, the actions of President Joe Biden have made it apparent that one of his Administration’s primary objectives is to wrestle away power from individual states and centralize it all in Washington.

It’s a gross overreach, and it violates the Constitution of the United States. The ACLJ is not going to stand by and allow it to happen. We just filed a critical amicus brief in the U.S. Court of Appeals for the 11th Circuit on behalf of 64 Members of the U.S. Senate and House.

It’s been nearly a year since we first told you about President Joe Biden, Senate Majority Leader Chuck Shumer, and Speaker of the House Nancy Pelosi’s scheme to block individual states from being able to lower their residents’ taxes if they accepted COVID-19 relief funds. They attempted to sneak the ban into the American Rescue Plan Act (ARPA) at the last minute and hoped we wouldn’t notice.

As we told you at the time:

The Schumer-Pelosi-led U.S. Senate and House of Representatives opted to use the budget reconciliation process to approve a partisan sixth stimulus bill. This resulted in a law littered with problems, but one of the worst is a last-minute provision slipped in that functionally prohibits states from lowering state taxes anytime between now and 2024. In other words, throughout President Biden’s first term.

Essentially the Biden Administration was saying to states, if you take COVID money, which many of you desperately need, the federal government gets to control how you then tax your residents. The states would basically have to forfeit their own authority if they accept the temporary relief. Exploiting a deadly pandemic to amass and consolidate more power is despicable.

That’s when we filed an amicus brief on behalf of dozens of Members of both the United States Senate and House of Representatives, led by Senators Mike Crapo and Tim Scott and Representatives Jim Banks and Kevin Brady, in a lawsuit brought by 13 states in federal district court to stop the Left’s ban on states’ ability to lower their own taxes. And the federal judge agreed with our arguments.

The court issued its Opinion and Order, granting the states’ request for a permanent injunction barring enforcement of the provision of ARPA that constructively forbade states that receive ARPA/COVID-19 relief funds from lowering their residents’ taxes.

As stated in the federal judge’s opinion:

[T]he Court finds no precedential authority that would proscribe its ruling today that Congress exceeded its Spending Clause authority in crafting an unconstitutionally ambiguous spending condition in the Tax Mandate.

But as always with this Administration, even a victory is no cause to let our guard down for a moment. President Biden and the Left are still at it, trying to block states from being able to lower taxes. Even at a time when there is so much economic volatility, when inflation and supply chain issues are making it hard just to feed families, and gas prices are steadily climbing across the country, President Biden really seems intent on impeding any relief for working Americans.

So the ACLJ is taking legal action. Again. We just filed an amicus brief, now at the U.S. Court of Appeals for the Eleventh Circuit, on behalf of 11 U.S. Senators and 53 U.S. Representatives, led by Sens. Mike Crapo and Tim Scott and Reps. Jim Banks and Kevin Brady, supporting the State of West Virginia in its lawsuit against the U.S. Department of Treasury opposing the Left’s “Tax Mandate.”

As we argued in our brief:

The conditions, i.e., the “Tax Mandate,” purportedly set by Congress controlling State recipients of the ARPA funds and prohibiting such States from lowering their taxes, exceed the conditioning power recognized by the Supreme Court. If the Tax Mandate is unambiguous, it amounts to an impermissible assault on the States’ sovereignty. If it is ambiguous, it fails to pass one of the Supreme Court’s clear limitations on Congress’s conditioning authority. As a result, the ultra vires Tax Mandate is unconstitutional.

The Biden Administration has tried to argue that its plan does not preclude individual states from lowering taxes for their residents, but we pointed out that, despite clever wording, it actually does just that:

On one hand, the Treasury Department told the press that the Tax Mandate does not prevent States from cutting taxes; on the other, it also told the press that ARPA funds cannot be used to pay for those cuts. Defendants cannot have it both ways. Again, since money is fungible, these are conflicting admissions by the Treasury Department, which, as the District Court correctly observed, was confirmed by the Interim Final Rule . . . . The States have identified a congressional conditioning action that the Biden Administration intends to enforce and that the condition plainly can be used to prevent recipient states from reducing their taxes.

We will continue to monitor the case and our legal team will be prepared to take further action, even all the way to the Supreme Court if that’s what it takes.

The Members of the U.S. Senate who signed onto our brief include:

Mike Crapo
Tim Scott
John Barrasso
John Boozman
Mike Braun
John Cornyn
Steve Daines
James Inhofe
James Lankford
Rob Portman
Todd Young

The Members of the U.S. House of Representatives who signed onto our brief include:

Jim Banks
Kevin Brady
Rick W. Allen
Jodey Arrington
Andy Biggs
Lauren Boebert
Mike Bost
Mo Brooks
Vern Buchanan
Ted Budd
Earl L. "Buddy" Carter
Madison Cawthorn
Steve Chabot
James Comer
Warren Davidson
Rodney Davis
Jeff Duncan
Jake Ellzey
A. Drew Ferguson, IV
Scott Fitzgerald
Mike Garcia
Louie Gohmert
Glenn Grothman
Michael Guest
Vicky Hartzler
Kevin Hern
Ashley Hinson
Richard Hudson
Chris Jacobs
Fred Keller
Mike Kelly
Darin LaHood
Billy Long
Tom McClintock
Carol D. Miller
Mariannette Miller-Meeks, M.D.
Greg Murphy, M.D.
Ralph Norman
Steven Palazzo
Scott Perry
Tom Reed
Guy Reschenthaler
Tom Rice
Chip Roy
Steve Scalise
Adrian Smith
Jason Smith
Lloyd Smucker
William Timmons
Ann Wagner
Jackie Walorski
Randy Weber
Brad Wenstrup