ACLJ Helps Score Victory on Behalf of 74 Members of Congress as Federal Judge Agrees That the Left's Tax Mandate is Unconstitutional


Jordan Sekulow

July 7, 2021

5 min read

Radical Left



The Biden Administration has been reaching right over the Constitution to snatch up as much power as it can grab. This time when the Biden Administration overreached, it “got its hand slapped,” with the help of the ACLJ’s legal team.

Recently we told you how we took action after the Left in the U.S. Senate and U.S. House of Representatives opted to use the budget reconciliation process to approve a partisan sixth COVID stimulus bill, which resulted in a law littered with problems. Perhaps one of the worst was a last-minute provision slipped into the bill that eviscerated states’ constitutional authority to set their own taxation policy. Essentially President Biden and the radical, power-hungry Left’s “Tax Mandate” told states that if they took federal relief money, they were not to lower taxes in any way for their residents.

The Left literally used the guise of COVID relief to ban states from lowering taxes.

That the Left would choose a pandemic that has financially crippled businesses and households across the country to abuse its power – by holding federal aid over states’ heads and then telling the states if they take the aid, they cannot provide additional economic relief by lowering taxes – is offensive. This is especially true considering the federal and state governments would still have the power to raise taxes.

Fortunately, the states fought back. Ohio was the first to file a lawsuit, correctly calling the prohibition an unconstitutional attempt to commandeer state taxing authority. Twenty-one additional attorneys general warned of potential legal action, and 13 states followed that up with a lawsuit filed in Alabama.  Wisconsin has since intervened in the Alabama case, bringing the number of states involved in the case to 14. Other states have filed lawsuits as well.

The ACLJ joined the fight to defend states’ constitutional rights by filing an amicus brief on behalf of not only our own ACLJ members, but also 19 U.S. Senators and 55 Members of the U.S. House of Representatives – that’s 74 Members of the United States Congress – in support of the Ohio lawsuit and its request for injunctive relief against the Left’s ban on states lowering taxes.

We are especially grateful to U.S. Senators Mike Crapo (ID) and Tim Scott (SC), and Congressman Jim Banks (IN), for leading this important effort.

As our brief argued, the Left’s “Tax Mandate” was unconstitutional no matter how you looked at it:

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 Ohio’s 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.

Now, we are pleased to report the federal court agreed with our argument that the tax cut ban was unconstitutionally ambiguous, and barred the Biden Administration from enforcing the unconstitutional Tax Mandate. As the judge explained in his opinion issued late last week:

On the merits, the Court concludes that the Tax Mandate, as written, falls short of the clarity that Supreme Court precedent requires for Spending Clause legislation that provides conditional grants to the States. And the Court also rejects the Secretary’s argument that the Treasury Department regulations cure that ambiguity. In that regard, the Court stops short of holding that Congress can never authorize an agency to supply the requisite clarity, but instead holds that, under ARPA, Congress did not do so here.

Accordingly, the Court finds that the Tax Mandate exceeds Congress’s power under the Constitution. The Court further finds that Ohio has met the conditions for injunctive relief to prevent the ongoing harm that this constitutional violation is causing. Thus, the Court PERMANENTLY ENJOINS the Secretary from enforcing the Tax Mandate against Ohio.

We are gratified that at a time when the radical Left and the Biden Administration seem committed to twisting and even shredding the Constitution to amass as much power as possible in Washington, D.C., a federal judge saw through the COVID smokescreen to uphold states’ rights to govern as they see fit.

Federalism matters. It protects not just the states, but individual liberty as well. This is why we filed this brief. This is why we will keep fighting.

As the Ohio Attorney General put it:

The Biden administration reached too far, seized too much and got its hand slapped. This is a monumental win for the preservation of the U.S. Constitution.

We also filed a critical amicus brief on behalf of our members and 78 Members of Congress in a similar case brought against the Biden Administration by the attorneys general of 13 states: Alabama, Alaska, Arkansas, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia.  Our brief in this case also argued that the Left’s Tax Mandate “violates the Spending Clause of the United States Constitution and the well-established limitations on Congress’s conditioning authority.”

We are hopeful that the Constitution will prevail in that case, too, and that we receive an outcome mirroring the victory we helped achieve in Ohio. We will continue to monitor these cases and will be prepared to take further legal action, even all the way to the Supreme Court if necessary.