21 Republican Attorneys General Ask Secretary Yellen About Constitutionality of American Rescue Plan Act

"In the absence of such an assurance by March 23, we will take appropriate additional action to ensure that our States have the clarity and assurance necessary."

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On Saturday, I blogged about Section 602(c)(2)(A) of the American Rescue Plan Act. I questioned whether this conditional spending program was constitutional. On Tuesday, twenty-one Republican Attorneys General wrote to Treasury Secretary Yellen. And they asked many of the questions I posed. The letter was spearheaded by the Attorneys General of Georgia, Arizona, and West Virginia.

Here is the introduction:

The undersigned State Attorneys General request that the Department of the Treasury take immediate action to confirm that certain provisions of the American Rescue Plan Act (the "Act") do not attempt to strip States of their core sovereign authority to enact and implement basic tax policy. Those provisions, found in section 9901 of the Act,1 forbid States from using COVID-19 relief funds to "directly or indirectly offset a reduction in … net tax revenue" resulting from state laws or regulations that reduce tax burdens—whether by cutting rates or by giving rebates, deductions, credits, "or otherwise[.]"2 This language could be read to deny States the ability to cut taxes in any manner whatsoever—even if they would have provided such tax relief with or without the prospect of COVID-19 relief funds. Absent a more sensible interpretation from your department, this provision would amount to an unprecedented and unconstitutional intrusion on the separate sovereignty of the States through federal usurpation of essentially one half of the State's fiscal ledgers (i.e., the revenue half). Indeed, such federal usurpation of state tax policy would represent the greatest attempted invasion of state sovereignty by Congress in the history of our Republic.

I think the easiest way for the states to win is under Pennhurst: there is no clear statement of what the condition requires:

First, if the Tax Cut Prohibition were interpreted to place any limits on how States could enact tax relief not directly connected to the relief funds provided by the Act, it would impose a hopelessly ambiguous condition on federal funding. The examples listed above make the point: how is a State to know, when accepting the relief funds, whether any of these kinds of commonplace and sensible tax relief measures are "indirectly" offset by COVID-19 relief funds? Is it enough that the funds help balance a state budget that also contains tax relief measures? What if the presence of relief funds in 2021's budget effectively frees up funds to offer tax relief in 2022? Absent a clear and narrowing construction by Treasury regulation, States cannot possibly know the bargain they are striking in accepting the relief funds. Yet the "legitimacy of Congress' power to legislate under the spending power … rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.'" Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).

The letter asks the Secretary for clarification of how the policy will be interpreted.

Given the foregoing, we ask that you confirm that the American Rescue Plan Act does not prohibit States from generally providing tax relief through the kinds of measures listed and discussed above and other, similar measures, but at most precludes express use of the funds provided under the Act for direct tax cuts rather than for the purposes specified by the Act. In the absence of such an assurance by March 23, we will take appropriate additional action to ensure that our States have the clarity and assurance necessary to provide for our citizens' welfare through enacting and implementing sensible tax policies, including tax relief.

The emphasized text means a lawsuit, probably in the 11th or 5th Circuit. The Biden administration should tread carefully here. If it takes a hardline position, the executive branch may suffer a huge defeat at the Court.

NEXT: Pennsylvania Bar Dismisses 3rd Circuit Appeal in Rule 8.4(g) Challenge

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  1. The lack of standing of the taxpayer is yet another insane denial of reality by the scumbag lawyer profession.

  2. No. There is zero risk of a “huge” defeat. At worst, they will lose, and be no worse off than if they had not included this provision. I think Josh is thinking with his heart and not his head, in terms of how stinging a loss would or would not be to the Biden administration on this particular issue.

    1. Legally you may be right — but politically, you aren’t.

      Trump was hassled by what — 3 AGs? (MA, NY & CA)
      Barrack O’Biden is going to have great fun with 21 on his heels — and you kinda know that his 60+ Executive Orders are next.

      1. Hopefully, yet the Republicans in the House and Senate have seemed uncomprehendingly compliant to the Unconstitutional laws. Our only hope is the State AG’s.

    2. It would be pretty stinging, for part of Biden’s first major law to be overturned on Constitutional Grounds…

      1. Get an education. Start with standard English, focusing on capitalization.

        Or continue to be an illiterate, obsolete clinger.

        Either way, I am content.

      2. Armchair,
        I think you mean, “stinging…for a small small part of Biden’s 1st law to be overturned…”

        No, not particularly. I suspect that the only people who find it ‘stinging’ or “devastating” or “catastrophic” (etc) will be those who are politically invested in finding fault with the Biden administration wherever and whenever possible. Which is part of politics, of course, and is therefore both expected and tedious. (As it is when liberals find fault with anything a conservative politician does.)

        1. In a lot of ways, it begins to parallel the Obama administration, and the series of laws and decisions made there that were overturned as unconstitutional.

  3. Massachusetts is planning tax breaks for “clean” energy, i.e. windmills, electric cars, etc. Wouldn’t it be ironic if this stopped that…

    1. Selective enforcement IS a thing, you know. If upheld, this ban on tax cuts will only be enforced against tax cuts they disapprove of.

  4. I applaud this action.

    Democracy and politics are not designed to be tea parties.

    They’re supposed to be adversarial and confrontational.

    And clarification is always a good thing.

    1. “Design” has nothing to do with it. It’s a consequence of human nature.

  5. What does the opinion of a member of the new Socialist Dictatorship have to do with Constitutionality?

    1. Please excuse me, I used the wrong term is should be:
      What does the opinion of a member of the new “politburo” have to do with Constitutionality?

      1. What does the opinion of someone who thinks we have a socialist dictatorship or politburo have to do with reality?

        1. Our system has a Congress which largely tries to hide from responsibility.

          Indeed, it was a joke that the Soviet legislature in a dictatorship of one party, had a higher turnover rate than the incumbancy of Congress.

      2. I would use the word “regime.” The President* Biden “regime” is appropriate.

        1. If you’re using “regime” in its non-pejorative sense, fine. In which case it applies equally as well to the Trump regime.

          1. In which case it applies equally as well to the Trump regime.

            In either case, actually. With Trump it was used in its pejorative sense routinely.

  6. I wonder if the fact that tax cuts will result in higher deficits for the states that implement them, thus increasing the likelihood of the need for a federal bailout at some point in the future, might create enough of a federal concern to overcome constitutional concerns. Those bills are going to come due some day.

    1. It wouldn’t, as most states have balanced budget requirements.

      1. Throwing federal borrowed money at them functionally lets them borrow while putting it on the federal debt.

        1. The problem with this line of logic is that if a state doesn’t participate, they’re effectively transferring wealth to the states that do. So there’s a perverse incentive for all states to participate to keep the net drain as close to zero as possible (understanding that distributions aren’t precisely proportionate to tax revenues).

          So this provision basically says that a state can’t both protect its long-term position by accepting the funds that the feds will later tax its citizens to make up, and be fair to its citizens by returning those funds to the same general population who will ultimately be paying the tab to the feds when the debt comes due. Instead, it’s effectively forced to spend the surplus.

          That’s pretty messed up.

  7. If anything, it’s the opposite.

    Many of the states are running at fairly minimal debt, as a % of gross state product. Florida’s net debt, for example, is just 1.97%. Even if you add in all local debt it’s just 9.2% of GSP.

    Meanwhile, the United States Federal Government is running at 136% of debt compared to GDP….

    So, it’s pretty rich for the US federal government to say “We get to control the State’s taxation policy, because we “might” have to bail you out one day because of your high debt load.

    1. Your argument essentially is that an obese parent can’t tell a child to eat healthy.

      Yes, the federal debt is far more than it should be, largely because of Republican tax cuts. However, that doesn’t mean that the states should be encouraged to do the same. Ideally, the federal government reduces its deficits while at the same time encouraging the states to continue to be responsible.

      1. 1. The states are not “children.” They are their own entities with rights, responsibilities, and privileges as enshrined by the US Constitution. Thus, your argument is fatally flawed.

        2. If we are to use your flawed analogy, the image you’re looking for is a grossly obese man shoving an entire cheesecake into his mouth at a dinner table. Then when one of the relatively slim children who is running a caloric deficit for the day reaches for a cookie to make up the deficit, the man slaps the hand of the child. “You don’t control what you eat, I control what you eat, because you might get fat!”….and then the man shoves another entire cheesecake into his mouth.

        1. Legally, children have their own rights, responsibilities and privileges. If you are a parent, you can’t discipline your client by breaking his arm, or pimp her as a prostitute, or starve him to death, or allow him to die of easily treatable illness. So the issue is where the line is drawn, not whether it exists. Yes, the states have their own rights and responsibilities to, but there are areas in which the Constitution grants supremacy to the feds, and federal spending is one of them.

          That said, your argument continues to be that hypocrites don’t have good arguments. We are in agreement that something needs to be done about the federal debt. But that doesn’t mean the feds can’t use the spending power to encourage states to be more fiscally responsible than they were.

          1. 1) We’re not talking about federal spending, but about effective control over STATE taxation levels. The Constitution doesn’t grant the Federal Government effective control over STATE taxation ability.

            2) Hypocrisy in this context is not about “good policy” but about control. When you see this absurd a level of hypocrisy, you severely doubt the veracity and sincerity of the organization making the argument.

            1. Oh, the states can tax as they please. They just can’t accept federal money without the strings attached. If they want to forego federal funding, they can set whatever policies they like.

              1. And when dealing with such significant amounts of federal funding, that’s abusive, and has been struck down by the courts.

                It was struck down in regards to Medicaid funding. It was struck down in regards to Trump trying the same trick to get rid of sanctuary cities with much lower levels of funding.

                When used in such a manner, tying “strings” to such massive amounts of funding to get the states to do what they wouldn’t otherwise, it is abusive and illegal.

                1. I think the issues were different in both the Medicaid and sanctuary city cases; it was not a pure question of tying strings to funding. The general rule is that Congress can regulate that which it funds.

                  1. Congress isn’t “funding” state taxation levels, so it can’t regulate them.

                    1. No, it’s funding stimulus spending, which it can condition.

                    2. See, and there you go, shifting the goalposts.

                      Here’s what you originally said”
                      “The general rule is that Congress can regulate that which it funds.”

                      But note how that shifted…
                      “No, it’s funding stimulus spending, which it can condition.”

                      You can CONDITION funding something on anything you want. It doesn’t need to be related to the funding at all. And that’s exactly what’s going on here.

                      But that type of “Conditioning” is coercive. The Federal government could, for example condition a State’s Medicaid funding on it becoming a right to work state….

                    3. Under the Commerce Clause and federal supremacy, Congress could eliminate the middleman of federal funding altogether and just simply pass mandates. It frequently has.

                      Using the spending power is coercive, but then so is my employer’s rule that I don’t get paid if I don’t show up for work.

                    4. Luckily, we have a number of SCOTUS decisions that prevent such coercive spending policies like you plan.

                    5. I didn’t say I was planning them; just that they’re constitutionally permissible. And I don’t think those decisions say what you seem to think they say, but if you want to cite one or two of them we can discuss it.

                2. The Medicaid expansion was different. In Sebelius, the Court found that making the entire pre-existing Medicaid program contingent on agreeing to the ACA Medicaid expansion was unduly coercive because the states had already relied upon the pre-existing Medicaid program. Here, the ARP stimulus program is entirely new and the states need not accept it. I think the states’ position is weak here.

                  1. It wasn’t just relying on the existing funding. The key aspect was the SCALE of the funding and how it related.

                    The reason why that was important, rather just being than “existing” funding, is because the easy work-around Congress would have otherwise. Congress could simply just pass one law, revoking existing funding, then a second law, restoring it with “strings”. Then the argument you’re proposing falls through.

                    It’s the coercive nature of the funding that makes it problematic

                    1. You seem to think that coercion makes it unconstitutional. It doesn’t. Show me a single Supreme Court decision saying that coercion makes spending stipulations unconstitutional.

                    2. South_Dakota v Dole.

                      https://en.wikipedia.org/wiki/South_Dakota_v._Dole

                      Court established a five-point rule for considering the constitutionality of expenditure cuts of this type:

                      The spending must promote “the general welfare.”
                      The condition must be unambiguous.
                      The condition should relate “to the federal interest in particular national projects or programs.”
                      The condition imposed on the states must not, in itself, be unconstitutional.
                      The condition must not be coercive.

          2. ” But that doesn’t mean the feds can’t use the spending power to encourage states to be more fiscally responsible than they were.”

            Are we pretending that’s what they’re doing? Because “Spend every cent of this windfall that may not be repeated, instead of saving it” doesn’t strike me as all that fiscally responsible.

            This isn’t about states up and deciding to run a deficit. It’s about them deciding that they’d rather balance their budgets at a lower, more sustainable spending level, than the unsustainable level they’re being pressured to spend at.

            1. But the very point of the stimulus is to stimulate, which means encouraging people to spend money. Putting it in the bank, or paying down debt, defeats the purpose.

              1. Then they probably should have sent the money to folks further down the income scale. Our funds just arrived and will be increasing my equity holdings this afternoon.

                I can morally justify doing so because I will need the capital gains to offset the $12,000 of national debt we’ve just been gifted with.

                1. Oh, I agree, if you want to help the economy you give it to people way down on the economic ladder.

                  As it happens, our stimulus check is roughly the same amount as what we owe in 2020 taxes, so we’re basically turning the funds around and sending them right back to the IRS.

  8. And the Washington Post, of course, reads this as a threat to the stimulus package, instead of an infringement on the States’ constitutional rights.

    https://www.washingtonpost.com/us-policy/2021/03/16/republicans-threat-stimulus/

    1. My God,
      People of good faith, having differing opinions about the legality or Constitutionality of a difficult issue?!? What an unbelievable concept!!! No wonder you are suspicious.

  9. “Biden prevented us from cutting your taxes!” should go over well in swing states during mid terms. What tf were they thinking when they added this?

    Even my wife, who is a “liberal” and votes Dem most of the time, has been doing nothing but talking about how Maryland overtaxes retirees so we need a plan to move in the future, before we retire. lol. Nobody likes higher taxes.

    I simply don’t think that this is enforceable. Trying to enforce it will be a political nightmare for Dems during the midterms. Probably why the GOP only put up light resistance before it passed.

    What will end up happening is that states like NY, IL, and CA that are addicted to tax hikes will use this as an excuse to kick the can down the road, while other states will ignore these provisions or find workarounds and continue to vacuum up people and jobs.

    1. You’re exactly right that nobody likes higher taxes, but continued deficit spending and debt are not viable in the long term. Eventually the credit cards will max out, and somebody is going to be left holding the bad. At that point, everybody’s taxes will go up, probably dramatically, while government services plummet.

      On the economy, the Democrats are basically the party of eat your vegetables. That that’s not popular — I myself fairly thoroughly detest brussels sprouts — does not mean they aren’t right.

      1. Many states are not in the terrible debt/deficit position that the Federal govt is. Some states do. As an example, IL and NJ do not have a tax problem, they have a pension problem and they do not have the political will to cut benefits. Neither state can tax their way out of their problems.

        The federal government can run a deficit forever. Technically what will happen is not “the credit cards will max out” – what will happen is investors lose confidence and the Fed will be forced to print money to finance the debt, and inflation ensues. The kind we saw during WWII or the 1970s.

        When that will happen is hard to say. Japan has much more debt/GDP and has been stuck in a low inflation trap for decades. So is Europe. On the other hand, Argentina and Latin American countries constantly struggle with double and triple digit inflation.

        Inflation is a kind of tax on savings/wealth. So, in a weird way, Dems may get their wealth tax with all these deficits, just not the way they think.

        1. When investors — especially China — are no longer willing to finance American debt, at that point the credit cards have maxed out, albeit by a different name. The point still is that the well will eventually run dry. And the experience of the Weimar Republic is that inflation and increased taxes will both happen at once. The bottom line continues to be that our fiscal health means that at some point taxes are just going to have to go up. Democrats are honest about it; Republicans aren’t.

          1. “taxes are just going to have to go up”

            No, spending can go down lol.

            1. Not to the level that would allow current taxation to support it. The drastic spending cuts that would be required for that have zero political support.

              1. Again, no. Do you even know what most of the spending is on?

                1. Yes, on stuff that you personally don’t benefit from, so you don’t care about it. There are plenty of voters, however, who do benefit and who would care, hence no Congress is ever going to cut spending to levels that would be supported by current taxation.

                  1. I will take that to mean you have no idea. Most of the debt/spending is between generations: Social Security and Medicare/Medicaid. The old spend it, the young pay for it.

                    Most of the debt is not owned by overseas investors, its held by US investors (saving for retirement)…. pension funds, 401ks, and the like.

                    As long as the US birthrate stays high, and people work, the (deficit) spending is sustainable. We need people to remain in the labor force, and for the labor force to increase, to pay for retirees social security, pension, and medical bills.

                    Of course, when we tax people who work, or pay people not to work, thats where we run into problems. We need people to stay in the labor force, and for it to expand. If there are not enough people in the labor force … there is literally no amount of taxation that will solve the problem.

                    1. I do have an idea, and my point was whether it was politically viable, not whether it’s good policy. If you think the people collecting social security and medicare/medicaid would sit idly by as their programs end, you are mistaken. Eisenhower said 60 years ago that any party that abolished social security would be out of power for the next fifty years.

                    2. There are enough votes in the Senate to push the retirement age back to 70, and also means test Social Security.

                      There are just not 60 votes. Progressives should be careful what they wish for when they end the filibuster.

                    3. I would be fine with means testing social security, and I’m a progressive. I haven’t thought through raising the retirement age so I have no position on it. I suspect most progressives have less sympathy for the wealthy retired than you might think; if they have to make a choice between struggling single mothers and the wealthy retired, I think I know which way that one would go.

                      And I’m also fine with ending the filibuster even if it means that the Senate will sometimes pass stuff I disagree with.

                    4. “less sympathy for the wealthy retired than you might think”

                      People with money in their 401k are people who have worked hard and saved their money. But lets punish that behavior by taxing it lolol. This is precisely the behavior we should be encouraging so that we can cut spending.

                    5. By law, Social Security and Medicare Part A do not contribute to the net debt.

                    6. You just changed the subject from what is politically viable to what is good policy.

                      OK, let’s run with policy. People with money in their 401k mostly have money in their 401k because they used (directly or indirectly) government infrastructure, government services, and government universities to get there. So it’s not unreasonable to ask them to pay some of it forward.

                      Unless you think the money fairy just dumps piles of cash to pay for the infrastructure, government services and universities that enabled them to get to where they are.

                    7. “As long as the US birthrate stays high, and people work, the (deficit) spending is sustainable.”

                      You haven’t been keeping track of the US birthrate. Or else you’d have written, “If the US birthrate rebounded”, not “as long as the US birthrate stays high”.

                      It has recently cratered.

                    8. “People with money in their 401k mostly have money in their 401k because they used (directly or indirectly) government infrastructure, government services, and government universities to get there. So it’s not unreasonable to ask them to pay some of it forward.”

                      The problem is that, if you are trying to be fair, retirement savings aren’t all that well correlated with lifetime earnings.

                      Suppose Alice and Bob earned the same salary every year of their lives, and Alice thriftily saved for retirement, while Bob spent it as fast he got it on women, wine, and song. Now Alice is having a nice retirement, and Bob is trying to figure out how to live on social security.

                      If you say ‘we want money, and Bob doesn’t have any, so let’s take Alice’s’, you are going to discourage future Alices from saving – why should they, when what they save will get taken away and given to the spendthrifts anyway.

                      To be clear, I don’t care how Alice and Bob spend their money. If Alice wants to save for later, and Bob wants to replace his 4 year old boat with a newer one, that’s up to them, not me. But saying that Alice needs to end up paying for Bob’s lifetime of new boats is very wrong.

                    9. I would not require Alice to fund Bob’s new boats, but neither would I allow Bob to starve to death in the streets because he made bad decisions. I think there’s an outer limit to how catastrophic we allow the consequences of someone’s bad decision making to be. And the older I get, the less judgmental I become of other people’s bad choices, just because over the years I’ve made enough of my own; when you’re my age, you’ll understand.

                      So maybe Alice gets to dine on shrimp and lobster whereas Bob lives off Ramen noodles. Alice still has an incentive to save, and Bob gets treated in a civilized manner.

                    10. “Alice gets to dine on shrimp and lobster whereas Bob lives off Ramen noodles.”

                      Right. And the way to do that is what Social Security does, where the young collectively provide a basic income to the old, and then are in turn supported when they become old. It’s not to give Alice and Bob exactly the same opportunity to save, then take the savings from those who chose to spend later and giving them to those who chose to spend earlier.

                      “when you’re my age, you’ll understand.”

                      I dunno which of us is older, but we’re both old enough to be retired, Pops 🙂

                  2. Interest payments are Constitutionally required. Social Security amd Medicare are politically untouchable. So is most military.

                    Revenues easily cover all that.

                    It’s the rest that becomes a problem to maintain.

                    These people wanted power, so they and their spouses can discover their inner investment genuis. Let them earn it by making these hard choices.

                    Hahahaha

              2. The type of taxation you’re talking about has zero political support.

                1. As Absaroka points out below, the facts of life are the facts of life. We can’t continue adding to the debt by orders of magnitude. It’s becoming a national security issue given the amount of the debt held by China. And there’s no political support to make the necessary cuts to live within current levels of taxation.

                  So pick your poison; you can’t have it all.

                  1. “And there’s no political support to make the necessary cuts to live within current levels of taxation.”

                    1)Unfortunately, there is also very little support for ‘why yes, raise *my* taxes to balance the budget’. There is lots of support for raising other people’s taxes to balance the budget (and indeed, for increased spending), but the math doesn’t pencil out – we can’t just balance the budget on a some narrow slice of the population.

                    2)Also unfortunately, when taxes have been raised in the past, our distinguished solons tend to not keep spending flat and balance the budget; they tend to act like lottery winners racing to spend ‘their’ new found money.

                    So I think political support for increasing taxes may have to be coupled with some budget restraint, and unfortunately years of promising but not delivering responsible spending has created deep public distrust that congress can be trusted not to spend like a sailor on liberty with 4 months back pay in his pocket.

                    1. I would largely agree with that. Though the problem is large numbers of voters who really do think it’s possible to lower taxes, increase spending, and balance the budget, all at the same time.

                    2. Heh. That has been a staple joke of mine for years:

                      Q: How do you get elected?
                      A: Promise ‘If elected, I will balance the budget, lower taxes, and raise benefits!’. And smile a lot.

                      In fairness, lots of people run their personal lives that way, too – this month they are telling you about their fiscal crisis of the month, next month they want to show you the fancy new car they just traded in their perfectly running 5 year old car for. Not everyone thinks long term.

                  2. Just saying, you can’t argue we have to raise taxes, because there’s no political support to drastically cut spending….when there’s no political support to drastically raise taxes either

          2. Also, people have been predicting that “The well will run dry” for about 250 years. The Federal government has had a deficit for almost its entire life (you can easily count how many balanced budgets we’ve had at the Federal level on two hands).

            Like the woman who predicts that “the world will end in 3 days”… one day they may indeed be correct. However, given the experience of Japan and Europe, its unlikely any tome soon.

            1. Two of the last three presidents to balance the budget were Democrats (one of whom, Lyndon Johnson, did so in the middle of a war). To find a Republican who balanced the budget, you have to go back to Eisenhower.

              And what’s new about the current situation is that exponential rate at which the debt has been expanding. That is what is unprecedented. Also the ratio of debt to GDP. You’re right that we’ve usually had deficits, but not like this.

              1. Presidents dont balance budgets, Congress does. The all the President does is sign the law and write the checks.

                1. Eisenhower and Johnson both had Democratic Congresses.

          3. “…Weimar Republic is that inflation and increased taxes will both happen at once. The bottom line continues to be that our fiscal health means that at some point taxes are just going to have to go up.”

            Personally, I’m not sure that ‘spend like there is no tomorrow until we repeat Weimar’ is the optimal solution.

            I agree that more people complain about tax increases than benefit cuts, but responsible leadership sometimes means explaining the facts of life to the electorate. Our current politicians aren’t even trying to do that, and haven’t been for some time.

  10. The American Rescue Plan seems to be pretty popular. While Republicans in Congress have opposed the bill, they have also noted that popularity and attempted to use it. Touting the act to their supporters. I have also noted the bill is popular with some local Republican politicians, and business groups. So while the state AGs might win the court battle it might be foolish for state lawmakers to syphon off the funds for tax breaks to their wealthy supporters.

    1. Of course it all most people know is that they’ll get a $1,400 check.
      Some people know their Obamacare premium will go down.
      Some people know they will get a tax credit for their children

      Almost nobody know how much of the money is a give away to governments, many of which don’t need it and other programs like the payments to black farmers or pay to bail out underfunded insolvent union pension funds..

      1. I am not sure why the comment on black farmers. The bill does have assistance to disadvantaged farmers and a significant number of these are black farmers, the article I saw put it at about 25%. Would you prefer a bill that helped disadvantaged farmers, but limited it to only white farmers? If we spend huge amounts on corn and sugar subsidies, why pick on giving a small amount to these farmers.

        1. “I am not sure why the comment on black farmers.”

          I have less doubt.

          THE VOLOKH CONSPIRACY
          This White, male, movement
          conservative blog has operated for
          FIVE (5) DAYS
          with gratuitous publication
          of a vile racial slur and for
          691 DAYS
          without engaging in partisan,
          viewpoint-driven censorship
          (so far as we know, anyway).

  11. It seems that Blackman has a particular focus on particularly bad legal argumentation

  12. The state AGs have a good point. We know that Manchin wanted this provision so that the stimulus money would be used to meet state spending obligations rather than cutting taxes (i.e., giving payments to individuals). So, it makes sense that the criterion for whether the states are complying should be whether they would have provided the tax cuts without the stimulus (if so, then the stimulus money is being used for spending). But, how can you tell what the states would have done without the stimulus money?

  13. “The Biden administration should tread carefully here. If it takes a hardline position, the executive branch may suffer a huge defeat at the Court.”

    Or perhaps conservatives’ conduct in this context will precipitate diminution or elimination of the filibuster, enabling the modern will of the American people to prevail against stale, ugly minority views.

    Or maybe the Biden administration will obtain a declaratory judgment from court not controlled by the Federalist Society.

    Keep trying, and pushing, clingers . . . not that it will accomplish anything in the medium to long term.

  14. Perhaps if that section of the act is found unconstitutional, Republicans can find a district judge in Texas willing to rule the section inseverable from the act as a whole, and thus kill the entire thing. Everyone who received a payout will have $2000 added on to their 2021 tax bill.

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