ACLJ Files Brief in Federal Court on Behalf of 78 Members of U.S. Senate and House Supporting 13 States in Another Lawsuit Against Unconstitutional Biden-Schumer-Pelosi Tax Cut Ban


Jordan Sekulow

May 4, 2021

6 min read

Radical Left



The Attorneys General from 13 individual states have filed a lawsuit against the Biden Administration, challenging the radical Left’s imperious ban on states lowering taxes.

Now the ACLJ has just joined them, filing a critical amicus brief in federal court on behalf of 78 Members of Congress, led by Senators Mike Crapo and Tim Scott and Representatives Jim Banks and Kevin Brady. Our brief supports the states’ challenge to this blatantly unconstitutional tax mandate.

We recently told you that 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.

As explained by the Wall Street Journal, the eleventh hour provision, artfully inserted by Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi:

limits how states and localities can use their $360 billion windfall. States can use the loot to provide government services, cover revenue losses during the pandemic and “respond to the public health emergency” or “its negative economic impacts, including assistance to households, small businesses, and nonprofits, or aid to impacted industries such as tourism, travel, and hospitality.”

Much of the relief will invariably flow to government union pension funds, which are underfunded in states like Illinois, New Jersey and Connecticut . . . . [But t]he bill explicitly bars states from cutting taxes.

This is a gross overreach of the empowered radical Left. Perhaps most insulting and infuriating is that while the Left essentially tells states they are not allowed to lower their residents’ taxes, both the federal government and states retain the right to raise taxes all they want.

As we stated previously:

This outrageous provision is arguably unconstitutional since the Supreme Court has only recognized constrained limits on the taxing power of states. And while the high Court has recognized that Congress may impose certain conditions on funds it gives to the states, it may not impose conditions so intrusive that it amounts to coercing the states to do its will.

In addition, this odious provision fails to pass the smell test. Exuding pungency, this provision conclusively shows that the Left in Congress, rather than concentrating on helping the American people and focusing on advancing the ongoing medical efforts to deal with the pandemic, is intent on effectively rewriting the Constitution and any limits on their power to control each and every aspect of our lives.

Previously, the ACLJ filed an amicus brief on behalf of 74 Members of Congress in support of the State of Ohio, which filed a lawsuit against the ban.

The new amicus brief is supporting 13 other states that have filed their own lawsuit in federal district court in Alabama, including: Alabama, Alaska, Arkansas, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia.

This time we’ve filed our brief on behalf of 20 U.S. Senators and 58 U.S. Representatives, voicing legal objections to the ban, and arguing that the tax mandate is unconstitutional because, as it is worded, it is either an invalidly ambiguous condition or an unambiguous, compulsory encroachment upon the states’ sovereign rights. As we note in our brief, which is also joined by over 119,000 ACLJ members:

The “Tax Mandate” in the American Rescue Plan Act of 2021 . . . exceeds Congress’s power under the Spending Clause, U.S. Const. art. I, §8, cl. 1. 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.

Our brief goes on to point out the inherent danger in the ambiguity of the mandate’s wording, also a violation of the Constitution:

An ambiguous condition violates the conditioning doctrine, as the Supreme Court and the Eleventh Circuit have recognized.

In either event, regardless of which path Defendants choose to take, the Tax Mandate is invalid as either (1) coercion and compulsion destroying the States’ sovereign right to decide their own tax policy in violation of the anticommandeering doctrine, or (2) an impermissibly ambiguous rule in violation of the conditioning doctrine.

In either event, the Tax Mandate is unconstitutional.

The bottom line is that the Left is grabbing for as much power as it can, and this despotic overreach cannot be allowed to stand. Right now they are dangling relief funds in front of states that desperately need them to keep police officers, firefighters, and other necessary services running and saying, “You can only have this if you do what we say.” That is not how things are done in a constitutional republic.

We will continue to monitor the case and our legal team will be prepared to take further action if necessary, even all the way to the Supreme Court.

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

Mike Crapo, Tim Scott, John Barrasso, Marsha Blackburn, John Boozman, Mike Braun, Shelley Moore Capito, John Cornyn, Kevin Cramer, Ted Cruz, Steve Daines, Bill Hagerty, James Inhofe, James Lankford, Roger Marshall, Rob Portman, Jim Risch, Ben Sasse, Rick Scott, and Todd Young

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

Jim Banks, Kevin Brady, Robert Aderholt, Rick W. Allen, Andy Biggs, Gus M. Bilirakis, Dan Bishop, Lauren Boebert, Mo Brooks, Vern Buchanan, Ted Budd, Earl L. “Buddy” Carter, Ben Cline, James Comer, Warren Davidson, Jeff Duncan, Ron Estes, A. Drew Ferguson, IV, Scott Fitzgerald, Mike Garcia, Louie Gohmert, Bob Good, Lance Gooden, Paul A. Gosar, D.D.S., Glenn Grothman, Michael Guest, Diana Harshbarger, Vicky Hartzler, Kevin Hern, Yvette Herrell, Ashley Hinson, Ronny L. Jackson, Mike Kelly, Darin LaHood, Kevin McCarthy, Tom McClintock, Carol D. Miller, Barry Moore, Devin Nunes, Scott Perry, Tom Reed, Guy Reschenthaler, Tom Rice, Mike Rogers, David Rouzer, David Schweikert, Pete Sessions, Adrian Smith, Jason Smith, Lloyd Smucker, Michelle Steel, W. Gregory Steube, Claudia Tenney, Ann Wagner, Jackie Walorski, Michael Waltz, Randy Weber, and Brad Wenstrup

The separation of powers in our constitutional republic is at stake. Join us in this fight.