Commonwealth of Ky. v. Janet Yellen

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0091p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

COMMONWEALTH OF KENTUCKY; STATE OF

│

TENNESSEE,

│

Plaintiffs-Appellees, │

> No. 21-6108

│

v. │

│

JANET YELLEN, in her official capacity as │

Secretary of the Treasury; RICHARD K. DELMAR, in │

his official capacity as Acting Inspector General of │

the Department of the Treasury; UNITED STATES │

DEPARTMENT OF THE TREASURY, │

Defendants-Appellants. │

┘

On Petition for Rehearing En Banc

United States District Court for the Eastern District of Kentucky at Frankfort.

No. 3:21-cv-00017—Gregory F. Van Tatenhove, District Judge.

Decided and Filed: May 3, 2023

Before: BUSH and NALBANDIAN, Circuit Judges.*

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Daniel Winik, Alisa B. Klein, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. ON RESPONSE:

Matthew F. Kuhn, Michael R. Wajda, OFFICE OF THE ATTORNEY GENERAL OF

KENTUCKY, Frankfort, Kentucky, Andrée S. Blumstein, J. Matthew Rice, OFFICE OF THE

ATTORNEY GENERAL AND REPORTER OF TENNESSEE, Nashville, Tennessee, for

Appellees.

*In view of the retirement of Hon. Bernice Bouie Donald, the third member of the original panel in this

appeal, this order is entered by a quorum of the panel. 28 U.S.C. § 46(d).

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 2

BUSH, J. (pp. 3–9), issued a statement, in which KETHLEDGE, THAPAR, and

NALBANDIAN, JJ., joined, regarding the denial of rehearing en banc. GRIFFIN, J. (pp. 10–

19), delivered a separate opinion, in which CLAY, GIBBONS, and STRANCH, JJ., joined,

dissenting from the denial of the petition for rehearing en banc.

_________________

ORDER

_________________

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision. The petition then was circulated to the full court.

Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 3

_________________

STATEMENT

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JOHN K. BUSH, Circuit Judge, issuing a statement regarding the denial of en banc.

During the debates over ratification of the Constitution, Alexander Hamilton, writing as

Publius, insisted that states would retain their authority over their own taxation “in the most

absolute and unqualified sense”—keeping any power to infringe that authority out of the new

federal government’s hands. See THE FEDERALIST NO. 32, at 154 (Alexander Hamilton) (George

W. Carey & James McClellan eds., 2001) (arguing that “an attempt on the part of the national

Government to abridge [the States] in the exercise of [their taxing authority] would be a violent

assumption of power, unwarranted by any article or clause of its constitution”). As Hamilton

explained, other than “the power of imposing taxes . . . on exports and imports,” which would

vest exclusively at the national level, “the power of imposing taxes” would be “manifestly a

concurrent and co-equal authority in the United States and in the individual states.” Id. at 156;

see also THE FEDERALIST NO. 34, at 162 (Alexander Hamilton) (George W. Carey & James

McClellan eds., 2001) (“[T]he particular states, under the proposed constitution, would have co-

equal authority with the union in the article of revenue, except as to duties on imports.”).

Because taxing power would be held concurrently by the federal government on the one hand

and the states on the other, there would be “no power on either side to annul the acts of the

other.” Id. at 163.

This appeal tested Hamilton’s argument. The state of Tennessee claimed that, as part of

the American Rescue Plan Act of 2021 (ARPA), Congress included a component—the “Offset

Provision”—that could be read to give the federal government control over that state’s taxing

power.1 Specifically, as Tennessee argued, the Offset Provision, codified at 42 U.S.C.

1The states of Tennessee and Kentucky both sued to challenge the application of the Offset Provision.

Although the panel majority held that Kentucky’s claim was nonjusticiable because its claim had been mooted by a

Department of Treasury rule that stated how Treasury would enforce the Offset Provision, Tennessee’s claim

remained viable based on its alleged injury from costs of compliance with the Treasury rule and the underlying

Offset Provision. Our court then held the Offset Provision was unconstitutionally vague and therefore was an

unenforceable spending condition under Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981).

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 4

§ 802(c)(2)(a), could be read to bar the states from enacting any tax cuts—a key part of their

sovereign taxing authority, see, e.g., Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332,

345 (1994) (noting that “the taxation authority of state government” is “an authority we have

recognized as central to state sovereignty”) (citing Tully v. Griffin, Inc., 429 U.S. 68, 73 (1976);

Union Pac. R.R. Co. v. Peniston, 85 U.S. 5, 29 (1873)).

How did the federal government infringe on state taxing authority, according to

Tennessee? ARPA offered states billions of dollars to help address the public health and

economic consequences of COVID-19, to help compensate essential workers, and for

investments in water and broadband infrastructure. See 42 U.S.C. § 802(c)(1)(A)–(D). But the

Offset Provision purportedly forbids the states from using ARPA funds

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). This directive “does not clearly explain (1) how to calculate a ‘reduction’ in

net tax revenue, (2) how to determine whether such a reduction resulted from a tax cut, or

(3) how to tell what particular conduct constitutes an ‘indirect’ offset.” Kentucky v. Yellen, 54

F.4th 325, 347 (6th Cir. 2022). As a result, Tennessee argued (and we agreed) “that an ‘indirect

offset’ could plausibly occur whenever a state enacts a revenue-reducing tax cut and expends

ARPA funds—no matter whether the state pours the ARPA funds into the precise area it cut

taxes.” Id. at 348.

Under this “money-is-fungible interpretation of the Offset Provision,” id. at 349,

executive officials could use Congress’s vague statutory language to control the taxation policy

of any state that accepts ARPA funds. Indeed, that’s what Treasury’s Rule implementing the

Offset Provision seems to say: “because money is fungible, even if [ARPA] funds are not

explicitly or directly used to cover the costs of changes that reduce net tax revenue, those funds

may be used in a manner inconsistent with the statute by indirectly being used to substitute for

Judge Nalbandian disagreed with the panel majority regarding whether Kentucky could proceed but otherwise

agreed on all other aspects of the decision.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 5

the state’s or territory’s funds that would otherwise have been needed to cover the costs of the

reduction.” 87 Fed. Reg. at 4,424 (emphasis added).

The dissental does not seem to dispute that, through use of Spending Clause legislation,

Congress could control state tax policy in this way. And the ramifications of the dissental’s

reasoning are far-reaching. The dissental apparently would allow Congress to control large

aspects of a state’s sovereign power, so long as the state agreed to give up that authority by

“contracting” with the federal government through acceptance of federal grant money.

Could a state, for a sum of money paid by the federal government, give up all of its

powers of governance? Of course not. So what are the limits to a state’s ability to sell its

sovereign powers to the federal government? As even the dissental must acknowledge, there are

limits: a spending condition on states is valid only “if the essence of their statehood is

maintained without impairment.” Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 597

(1937).

For purposes of the appeal, we didn’t need to decide when this impairment occurs in the

context of states receiving federal grant money dispensed with conditions under the Spending

Clause. Instead, the case turned on whether Congress clearly stated one such condition—the tax

limitation that is embodied in the Offset Provision. For, as the Supreme Court has directed, “if

Congress intends to impose a condition on the grant of federal moneys [under its Spending

Clause authority], it must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1, 17 (1981) (citing Emps. v. Dep’t of Pub. Health & Welfare of Mo., 411 U.S. 279, 285

(1973)). This threshold requirement—that Congress speak clearly as to a condition it imposes—

at least provides assurance that, before a state gives up some of its power in exchange for federal

grant money, the state’s eyes are wide open: it knows what the consequences are.

This requirement that Congress clearly state its conditions was applied in Pennhurst in

the context of federal grant funds for services for people with mental disabilities. Attached to the

grant money was a “bill of rights” that stated that (1) people with developmental disabilities

“have a right to appropriate treatment” and (2) such treatment “should be provided in the setting

that is least restrictive of the person’s personal liberty.” Id. at 13. The Court held that

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 6

“appropriate treatment” and “least restrictive” are indeterminate terms, so “Congress fell well

short of providing clear notice to the [s]tates” of what the bill-of-rights provisions meant or that

they were compulsory. Id. at 24–25.

A similar vagueness existed here in the Offset Provision. Indeed, Secretary Yellen

acknowledged as much when she stated that “[w]e will have to define what it means to use

money from this Act as an ‘offset’ for tax cuts. And, given the fungibility of money, it’s a hard

question to answer.” Treasury Secretary & Federal Reserve Chair Testimony on COVID-19

Economic Recovery at 58:30-59:05, available at https://www.c-span.org/video/?510059-

1/treasury-secretary-federalreserve-chair-testimony-covid-19-economic-recovery. Because it

was “a hard question to answer”—that is, the meaning of the Offset Provision was vague—that

condition is unenforceable under Pennhurst.

The dissental attempts to clarify the vagueness by asserting that the Offset Provision

simply “prohibits a state from using the funding to help balance its books.” Dissental at 10.

That is one reading of the statute. But because of the lack of clear content, it is not obvious what

the provision requires. Another possible reading—acknowledged by Treasury—is that the Offset

Provision allows Congress to control any tax cut of a state, regardless of whether the tax cut is

directly tied to the receipt of ARPA funds. The availability of other interpretations like this one,

which would tie the hands of a state when it comes to cutting taxes, renders the Offset Provision

unenforceable under the Pennhurst clear-statement rule.

The dissental contends that Pennhurst and its progeny apply “when the Treasury seeks to

recoup funds from a state for an alleged violation of a specific condition attached to a grant of

funds.” Dissental at 13. But that was not exactly the situation in Pennhurst itself. In that case,

the Supreme Court considered whether the “bill of rights” provision was a valid exercise of

Congress’s authority under the Constitution’s Spending Clause—not whether a recoupment

action was valid. 451 U.S. at 25.

The dissental also asserts: “No prior Spending Clause case has ever prospectively

enjoined enforcement of an entire provision based on purported vagueness in the statute,

meaning that the panel’s analysis lacks a cognizable legal foundation.” Dissental at 14. But

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 7

Pennhurst essentially did just that by nullifying the bill-of-rights provisions. Similarly, in NFIB

v. Sebelius, 567 U.S. 519 (2012), the Supreme Court held that Congress could not use the

spending power to force states to expand Medicaid. As Chief Justice Roberts explained,

Section 1396c gives the Secretary of Health and Human Services the authority to

. . . withhold all “further [Medicaid] payments . . . to the State” if she determines

that the State is out of compliance with any Medicaid requirement, including

those contained in the expansion. 42 U.S.C. § 1396c. In light of the Court's

holding, the Secretary cannot apply § 1396c to withdraw existing Medicaid funds

for failure to comply with the requirements set out in the expansion. That fully

remedies the constitutional violation we have identified.

Id. at 586 (opinion of C.J. Roberts).2 While NFIB v. Sebelius was decided on coercion and not

vagueness grounds, the Court in that case nevertheless invalidated, on a pre-enforcement basis,

new conditions purportedly required to retain Medicaid funds.

Other Supreme Court cases have approved prospective relief based on the Pennhurst

clear-statement rule. Consider Sossamon v. Texas, 563 U.S. 277 (2011), a case about the

Religious Land Use and Institutionalized Persons Act of 2000, Pub L. No. 106-274, 42 U.S.C.

§ 2000cc et seq., which authorized “appropriate relief against a government” for burdens on

prisoners’ religious exercise. 563 U.S. at 282. Noting that “[d]ual sovereignty is a defining

feature of our Nation’s constitutional blueprint,” id. at 283, the Supreme Court held this relief

provision ambiguous and forbade future damages suits against states under the statute as

violative of sovereign immunity. Id. at 288. Similarly, in Gonzaga University v. Doe, 536 U.S.

273 (2002), the Supreme Court held that “federal funding provisions provide no basis for private

enforcement by [42 U.S.C.] § 1983” absent a clear statement, thus barring future § 1983 actions

under the Family Educational Rights and Privacy Act of 1974. Id. at 279–80.

The dissental presses that “[w]hatever vagueness exists in the Act is of no moment to our

prospective inquiry today; at most, it may make recoupment actions for the government more

difficult tomorrow.” Dissental at 19. But the purpose of the Pennhurst rule is to provide clarity

2Although the NFIB opinion was fractured, a majority of the court believed the spending condition was

unconstitutional. 567 U.S. at 689. Based on the narrowest possible holding under the Marks rule, see Marks

v. United States, 430 U.S. 188 (1977), it is fair to say the court held that the spending condition was unenforceable

against the states for the purpose of withdrawing existing Medicaid funds.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 8

to states when Congress passes the law, not just when the Executive chooses to enforce it. The

states are entitled to know clearly what conditions they must abide by when they take the grant

money, not live with the uncertainty of how vague conditions will be enforced in the future. See

Pennhurst, 451 U.S. at 25 (“Though Congress’ power to legislate under the spending power is

broad, it does not include surprising participating States with postacceptance or ‘retroactive’

conditions.”).

The dissental further appears to question the panel’s reliance on statutory interpretation,

but such reasoning is not out of the ordinary in cases involving challenges based on the Spending

Clause. Such cases usually follow a clear-statement rule as a matter of statutory interpretation—

namely, that Congress must condition the states’ receipt of federal funds “unambiguously.”

South Dakota v. Dole, 483 U.S. 203, 207 (1987) (quoting Pennhurst, 451 U.S. at 17); see, e.g.,

Sch. Dist. of City of Pontiac v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 283–84 (6th Cir.

2009) (en banc) (Sutton, J., concurring) (describing the clear-statement rule as a “statutory

limitation on Congress’s spending power”). Consistent with these and other precedents, our

court decided this case based on statutory interpretation rather than invalidating the condition as

unconstitutional. However, had the court taken the latter approach, as did the Eleventh Circuit,

that mode of reasoning would have changed little about the outcome of the case. See West

Virginia v. U.S. Dep’t of Treasury, 59 F.4th 1124, 1146 (11th Cir. 2023). Indeed, as the dissental

recognizes in a footnote, the reasoning it advocates would create a circuit split with the Eleventh

Circuit. Dissental at 19 n.4.

Lastly, the dissental suggests that if the vagueness is “severe enough,” the entire statute

should be void under contract principles. Dissental at 17. Although Spending Clause legislation

is “much in the nature of a contract,” id. at 7 (quoting Barnes v. Gorman, 536 U.S. 181, 186

(2002)), that hardly means that every contract principle should be imported into the interpretation

of spending legislation that infringes on state sovereign interests. This view would be difficult to

square with Supreme Court precedent. Returning to Pennhurst, the Supreme Court did not

invalidate the entire statute by treating it as a “contract” but instead deemed only the portion of

the statute containing the vague conditions to be unenforceable. 451 U.S. at 23–25. Our court

here followed a similar course with respect to the vague Offset Provision.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 9

As Pennhurst and other precedents recognize, more is at stake when Congressional

spending legislation threatens state sovereign interests than is at issue in a run-of-the-mill private

contract dispute. “In traditionally sensitive areas, such as legislation affecting the federal

balance, the requirement of clear statement assures that the legislature has in fact faced, and

intended to bring into issue, the critical matters involved in the judicial decision.” United States

v. Bass, 404 U.S. 336, 349 (1971). And the idea that cursory statutory language could slice state

taxing authority stabs at the heart of Hamilton’s defense of the Constitution in The Federalist

Nos. 32 and 34, where he insisted that the federal government would have no control over

retained state taxing authority. These are among the reasons that, particularly in the context of

taxing policy, Congress must speak with a clear voice when it imposes conditions on states for

the receipt of federal funds—a principle from Pennhurst that our court faithfully implemented in

this case.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 10

_________________

DISSENT

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GRIFFIN, Circuit Judge, dissenting.

The American Rescue Plan Act (ARPA) appropriated nearly two trillion dollars to help

mitigate the COVID-19 pandemic and its economic impact. Two hundred billion dollars went to

the states if they agreed to comply with the conditions imposed by the Act. Every state did so

and accepted the funding.

Yet despite the largesse the Act bestowed, many states took issue with it. See, e.g.,

Arizona v. Yellen, 34 F.4th 841, 847–48 (9th Cir. 2022) (collecting cases). Relevant here,

Tennessee complained, not about the money, but about a particular condition attached to the

receipt of those funds. Under the Act, a state must use the funds in several ways, all generally

related to the COVID-19 pandemic—to respond to the “public health emergency,” to assist

“workers performing essential work,” to bolster “government services,” and to make “necessary

investments” in infrastructure. 42 U.S.C. § 802(c)(1)(A)–(D).1 The Act also explicitly prohibits

a state from using the funding to help balance its books:

A State . . . shall not use the funds provided under this section or transferred

pursuant to section 803(c)(4) of this title to either directly or indirectly offset a

reduction in the net tax revenue of such State . . . 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) (emphasis added).

This “Offset Provision” drew Tennessee’s ire. It sought to prospectively enjoin the

Department of the Treasury from enforcing the Provision, claiming, among other things, that the

1A fifth permissible use of the funds was later added, allowing the states “to provide emergency relief from

natural disasters or the negative economic impacts of natural disasters.” 42 U.S.C. § 802(c)(1)(E).

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 11

Provision was an unconstitutionally ambiguous condition in violation of the Spending Clause.2

See, e.g., South Dakota v. Dole, 483 U.S. 203, 207, 211 (1987). The panel held that the

Provision was vague because it failed to adequately explain: “(1) how to calculate a ‘reduction’

in net tax revenue, (2) how to determine whether such a reduction resulted from a tax cut, or

(3) how to tell what particular conduct constitutes an ‘indirect’ offset.” Kentucky v. Yellen, 54

F.4th 325, 347 (6th Cir. 2022). Yet while the panel explicitly declined to hold the Provision

“‘unconstitutional’ under the Spending Clause, strictly speaking, just because of those

indeterminacies,” it still provided the requested injunctive relief. Id. It concluded that, “[a]s a

matter of statutory interpretation,” the provision was statutorily unenforceable and severable by

operation of the Spending Clause’s clear-statement rule. Id. This analysis, conclusion, and

remedy is extraordinary, erroneous, and in conflict with Supreme Court precedent. See Fed. R.

App. P. 35(a)(1).

This case also involves a question of exceptional importance. See Fed. R. App.

P. 35(a)(2). It has significant, wide-reaching implications. Every state accepted ARPA funding

and agreed to its conditions, so a correct interpretation of the Offset Provision is critical not only

for the states in our circuit, but also on a national level. In addition, the panel’s decision will

significantly impair Congress’s ability to impose conditions in future legislation. Cf. Bennett

v. Ky. Dep’t of Educ., 470 U.S. 656, 669 (1985) (noting that Congress need not “prospectively

resolve every possible ambiguity” in Spending Clause legislation). This impacts Congress’s

relationship with the states and its ability to further its own policy objectives through Spending

Clause legislation.

I therefore respectfully dissent from the denial of the petition for rehearing en banc.

2Kentucky joined Tennessee in bringing this suit, but Kentucky’s claim, as with other states’ parallel suits,

foundered on jurisdictional issues based on the injuries (or lack thereof) alleged in the individual complaints.

Compare Kentucky v. Yellen, 54 F.4th 325, 341 (6th Cir. 2022), Ohio v. Yellen, 53 F.4th 983, 985 (6th Cir. 2022),

and Missouri v. Yellen, 39 F.4th 1063, 1070–71 (8th Cir. 2022), with West Virginia v. U. S. Dep’t of Treasury, 59

F.4th 1124, 1138–40 (11th Cir. 2023), and Arizona, 34 F.4th at 853.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 12

I.

Incident to the Spending Clause of the U.S. Constitution, “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 federal moneys upon compliance by the

recipient with federal statutory and administrative directives.” Dole, 483 U.S. at 206 (internal

quotation marks omitted); see also U.S. Const. art. I, § 8, cl. 1. These conditions and policy

objectives may exceed the Constitution’s “enumerated legislative fields” because “the power of

Congress to authorize expenditure of public moneys for public purposes is not limited by the

direct grants of legislative power found in the Constitution.” Dole, 483 U.S. at 207 (citation

omitted). With this, the Supreme Court has “repeatedly characterized” Spending Clause

legislation as “much in the nature of a contract: in return for federal funds, the [states] agree to

comply with federally imposed conditions.” Barnes v. Gorman, 536 U.S. 181, 186 (2002)

(citation omitted). States, as sovereigns, are therefore free to contract with Congress under the

Spending Clause “if the essence of their statehood is maintained without impairment.” Charles

C. Steward Mach. Co. v. Davis, 301 U.S. 548, 597 (1937).

Yet Congress’s power under the Spending Clause is not unlimited, for if Congress

imposes a condition on the receipt of funds, it “must do so unambiguously,” thereby enabling the

states “to exercise their choice knowingly, cognizant of the consequences of their participation.”

Dole, 483 U.S. at 207 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

(1981)). The seminal case on unambiguity is Pennhurst. The dispute there was whether

Pennsylvania was required to provide certain types of treatment to mentally disabled persons

after it accepted funds under the Developmentally Disabled Assistance and Bill of Rights Act of

1975. 451 U.S. at 6–10. The plaintiffs alleged that the state violated its obligations under the so-

called patient “bill of rights” provision of the act by not affording patients the right to

“appropriate treatment” in the “least restrictive” setting. Id. But the Court held that this was not

a condition on the receipt of funding and thus the state did not agree to it as a binding obligation

when it accepted the funding. Id. at 27. In context, that provision merely “serve[d] as a nudge”

in Congress’s preferred direction and did “no more than express a congressional preference for

certain kinds of treatment.” Id. at 19 (citation omitted). Because the Provision “lack[ed]

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 13

conditional language,” Congress intended it to be “hortatory, not mandatory,” and “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 [it].” Id. at 24, 25.

Pennhurst thus established the contours of the clear-statement rule. This rule applies

when the Treasury seeks to recoup funds from a state for an alleged violation of a specific

condition attached to a grant of funds. When a state has allegedly violated a condition and we

are called to determine whether that purported condition is, in fact, a condition on the receipt of

funds, we look for a clear statement from Congress. This is a matter of “statutory construction.”

Id. at 24. We must determine whether Congress gave “clear notice” that it intended the alleged

condition to be a binding obligation on the acceptance of funds. Id. at 25. If it did, the condition

applies. But if not, the disputed provision is simply not a condition, and a state—like

Pennsylvania in Pennhurst—need not comply with it. See id. at 25, 27.

Subsequent cases have not deviated from this analysis. For example, the Supreme Court

in Bennett held that Kentucky had to comply with an “unambiguous” funding-calculation

condition in Title I even if ambiguities existed in other applications of the statute—“Pennhurst

does not suggest that . . . every improper expenditure [must be] specifically identified and

proscribed in advance.” 470 U.S. at 666, 673. In Arlington Central School District Board of

Education v. Murphy, the Court concluded that compensation of expert fees was not an

unambiguous condition in the Individuals with Disabilities Education Act: when viewing the

Act “from the perspective of a state official” deciding whether to accept the funds, the act did not

clearly express that the “liability at issue” (i.e., expert fees) was a condition on the receipt of

funding. 548 U.S. 291, 296–98 (2006). And our court has followed the same framework.

Though we divided as to application, the entire en banc court applied this statutory interpretation

principle in School District of City of Pontiac v. Secretary of the United States Department of

Education, 584 F.3d 253 (6th Cir. 2009) (en banc), when determining whether the “unfunded

mandate” in the No Child Left Behind Act required a state to comply with the act, even if doing

so increased the costs of compliance. See id. at 271–72 (opinion of Cole, J.); id. at 284–85

(Sutton, J., concurring); id. at 310–11 (Gibbons, J., concurring in part). See also Cutter

v. Wilkinson, 423 F.3d 579, 585–86 (6th Cir. 2005) (“The plain language of RLUIPA provides

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 14

ample notice to potential funding recipients” that the statute applies to “any program or activity

that receives Federal financial assistance.” (citation omitted)). In each of these cases, the state

was accused of violating a Congressional requirement attached to funding. Then, to evaluate

each claim, each court was tasked with determining whether the specific “liability at issue” was

clearly articulated and unambiguous such as to require the state to comply with the condition.

Cf. Arlington, 548 U.S. at 296.

The panel’s decision to use the clear-notice standard in such a novel manner conflicts

with this caselaw. The Treasury has not claimed that Tennessee violated the Offset Provision;

rather, Tennessee prospectively challenges the provision’s ambiguity and asks us to enjoin its

future enforcement. Pennhurst’s clear-statement rule nowhere near encompasses this situation.

Thus, it is inapplicable here, for “a decision based on a certain set of facts should not control the

outcome of a later case with a factual context that the court adjudicating the earlier case had no

opportunity to consider.” See Bryan A. Garner, et al., The Law of Judicial Precedent 82 (2016).

By applying the “clear notice” language in an unprecedented manner, wholly unsupported by

prior caselaw, the panel “cherry-pick[ed] a sentence” from Pennhurst to divine a rule that “has

no precedential force” in this analysis. Id.; see also In re Flint Water Cases, 53 F.4th 176, 207

(6th Cir. 2022) (opinion of Griffin, J.) (“To derive a rule from a case that did not address the

pertinent question is to build a syllogism upon a conjecture.” (citation and internal quotation

marks omitted)). No prior Spending Clause case has ever prospectively enjoined enforcement of

an entire provision based on purported vagueness in the statute, meaning that the panel’s analysis

lacks a cognizable legal foundation.

The decision also creates intractable tension with other areas of law. Despite recognizing

that the Offset Provision is not “unconstitutional” because of its purported vagueness, the panel

still enjoined enforcement of the provision “[a]s a matter of statutory interpretation.” Kentucky,

54 F.4th at 347. But a party is entitled to a permanent injunction like this only “if it can establish

that it suffered a constitutional violation . . . .” Schmitt v. LaRose, 933 F.3d 628, 637 (6th Cir.

2019) (citation omitted; emphasis added). Statutory interpretation, by contrast, does not give a

court this authority. Rather, “[i]n the interpretation of statutes, the function of the courts is easily

stated. It is to construe the language so as to give effect to the intent of Congress.” United States

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 15

v. Am. Trucking Ass’ns, 310 U.S. 534, 542 (1940). Thus, Tennessee could be entitled to a facial

injunction if it could demonstrate that ARPA were unconstitutional, but such a challenge would

face a high bar—we presume statutes to be constitutional and require litigants to establish that no

set of circumstances exist under which the statute is valid. See United States v. Morrison,

529 U.S. 598, 607 (2000); United States v. Salerno, 481 U.S. 739, 745 (1987). The panel’s

opinion thus recasts a constitutional analysis as a statutory one, allowing it to provide a

constitutional remedy (injunctive relief) while avoiding the high hurdles of a constitutional

analysis. But this it could not do, for “[e]ven though this clear-statement rule has constitutional

roots, it remains a rule of statutory interpretation, one constrained by other canons of statutory

interpretation.” City of Pontiac, 584 F.3d at 284 (Sutton, J, concurring); accord id. at 271–73

(Cole, J.). No authority allows a court to enjoin enforcement of a statute under the Spending

Clause simply because it is vague “as a matter of statutory interpretation.”

To resolve Tennessee’s ambiguity argument, we should instead apply traditional contract

law principles. As noted above, the Supreme Court has “repeatedly characterized Spending

Clause legislation as ‘much in the nature of a contract’” and “regularly applied the contract-law

analogy in cases defining the scope of conduct for which funding recipients may be held liable

for money damages.” Barnes, 536 U.S. at 186 (quoting Pennhurst, 451 U.S. at 17). “Just as a

valid contract requires offer and acceptance of its terms,” Spending Clause legislation “rests on

whether the [state] voluntarily and knowingly accepts the terms of the ‘contract.’” Id. (citation

omitted). The “crucial inquiry” is “whether Congress spoke so clearly that we can fairly say that

the State could make an informed choice.” Pennhurst, 451 U.S. at 25. These principles apply

here, as Tennessee complains of an “unconstitutionally ambiguous” condition attached to an

offer of funding (with which it agreed to comply).3

Through this lens, ARPA is a valid exercise of Congress’s Spending Clause power at this

juncture. A valid contract requires “reasonably certain” terms—ones that “provide a basis for

3While Barnes did note that not “all contract-law rules apply to Spending Clause legislation,” that is no

barrier here. 536 U.S. at 186. That was a reference to Bennett’s conclusion that “ambiguities in the requirements

should [not] invariably be resolved against the Federal Government as the drafter of the grant agreement.” 470 U.S.

at 669. Therefore, this admonition from Barnes merely makes clear that we should not automatically hold any

ambiguity here against the government.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 16

determining the existence of a breach and for giving an appropriate remedy.” Restatement

(Second) of Contracts § 33 (Am. L. Inst. 1981). And the terms of Congress’s offer are indeed

reasonably certain. For one, states know that the Offset Provision is one of the “[r]equirements”

on the use of funds, § 802(c), so the Act does not “lack conditional language,” Pennhurst,

451 U.S. at 25. A state also knows that it must “use” the money only in the ways enumerated by

the Act: by providing (1) assistance or aid to industries affected by the pandemic; (2) pay or

grants to essential workers; (3) “government services” in those areas where funding was

impacted by the pandemic; (4) “necessary investments” in infrastructure, or (5) “emergency

relief from natural disasters.” 42 U.S.C. § 802(c)(1). Conversely, the Offset Provision itself

conveys that the states cannot “use” the money to balance the books by offsetting a tax

reduction. Id. § 802(c)(2)(A). Together, these conditions convey that a state must use the money

in certain ways to provide direct assistance, while clarifying that offsetting tax breaks is not a

permitted use of ARPA funds.

That some vagueness may exist in the Offset Provision itself does not change that a state

can reasonably understand its obligations. First, § 802(g)(1) reasonably conveys the baseline

year—states should know that this is 2019, the last full fiscal year before the “covered period”

outlined by ARPA and before the beginning of the COVID-19 pandemic. Second, the statute

provides a mechanism for determining whether a state’s tax revenues are “reduce[d]”—the

Secretary of the Treasury is empowered to provide “necessary or appropriate” guidance to carry

out the section under § 802(f). States would reasonably know that that guidance would fill in

the missing pieces, including whether the Offset Provision applies to expected or actual

tax revenues. And courts have deferred to an agency’s explicit authority to implement Spending

Clause legislation. See Bennett, 470 U.S. at 668–73; Mowbray v. Kozlowski, 914 F.2d 593, 600–

01 (4th Cir. 1990) (“[A]mbiguit[ies] in the Medicaid scheme . . . require some deference to [the

Secretary of Health’s] interpretation.”). Third, the term “indirectly offset” is not so broad as to

deprive a state of the ability to understand its obligations. The directives in § 802(c)(1) convey

how a state must use ARPA money, and the Offset Provision clarifies that tax cuts are not a

mode of “assistance” that states can provide. Read in context with § 802(c)(1), if Tennessee uses

ARPA funds in compliance with the enumerated “use” requirements, it will comply with

ARPA’s conditions, even if it enacts other tax cuts. Whether § 802(c)(2)(A) conveys the precise

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 17

contours of “indirectly offset” is immaterial here, for no interpretation of the Offset Provision

can override or conflict with the provisions of § 802(c)(1). See Food & Drug Admin. v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“[W]ords of a statute must be read in

their context and with a view to their place in the overall statutory scheme.”(citation omitted));

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The

provisions of a text should be interpreted in a way that renders them compatible, not

contradictory.”). For this reason, it is unambiguously clear that the phrase does not rise to the

level of prohibiting all tax cuts, meaning that the Act does not abridge a state’s “indispensable”

and “essential” power of taxation. See Lane Cnty. v. State of Oregon, 74 U.S. 71, 76–77 (1868).

So the agreement is valid because “the essence of their statehood is maintained without

impairment.” Steward Mach. Co., 301 U.S. at 597. In sum, as long as a state complies with

§ 802(c)(1), it knows it is not performing an indirect offset and that the government cannot

recoup the spent funds.

The panel’s decision to ignore these contract-law principles is particularly problematic

here. For one, in contract law, an ambiguous or vague term never leads to invalidation of only

one part of a contract. If the vagueness is severe enough, there is no meeting of the minds and

the agreement itself is void: “If the essential terms are so uncertain that there is no basis for

deciding whether the agreement has been kept or broken, there is no contract.” Restatement

(Second) of Contracts § 33, comment a. But if the agreement stands, a court will interpret it and

provide the requisite clarity. “When parties agree to a patently ambiguous term, they submit to

have any dispute over it resolved by interpretation. That is what courts and arbitrators are for in

contract cases—to resolve interpretive questions founded on ambiguity.” Colfax Envelope Corp.

v. Local No. 458-3M, Chi. Graphic Commc’ns Int’l Union AFL-CIO, 20 F.3d 750, 754 (7th Cir.

1994). In no instance will a court determine that a contract exists but that one provision is

categorically unenforceable simply because its scope may be initially unclear. Cf. Texas v. New

Mexico, 482 U.S. 124, 129 (1987) (“[G]ood-faith differences about the scope of contractual

undertakings do not relieve either party from performance.”). If the Provision’s terms were

indeed vague, Tennessee and the Treasury did not contract, the entire contract is void, and

Tennessee must return the funding. Conspicuously (and unsurprisingly), Tennessee has never

volunteered to do so.

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 18

Further, this conclusion causes particular discord in the Spending Clause context as

Congress must now speak with greater clarity than courts have ever required. Congress does not

need to “prospectively resolve every possible ambiguity” or identify “every improper

expenditure” when offering funds to states. Bennett, 470 U.S. at 666, 669; see also Pennhurst,

451 U.S. at 24–25 (noting that a condition is valid if “Congress spoke so clearly that we can

fairly say that the State could make an informed choice,” even if a state’s potential obligations

may otherwise be “largely indeterminate”). Requiring it to do so would have a chilling effect on

Congress’s ability to impose discretionary conditions, even though courts have held that those

pass Spending Clause muster. See, e.g., Penn., Dep’t of Pub. Welfare v. Sebelius, 674 F.3d 139,

153 (3rd Cir. 2012) (noting that a “discretionary” condition does not defy Pennhurst, which

“merely requires that states have clear notice of conditions on accepting federal funds, and

imposes no requirement that such conditions be unconditional”). And requiring this much

specificity will likely prove to be unworkable. See Mayweathers v. Newland, 314 F.3d 1062,

1067 (9th Cir. 2002) (“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.”).

Moreover, the panel’s decision wrongly allows the states to receive ARPA funds but

escape their agreement with Congress to comply with the Offset Provision—to essentially have

their cake and eat it too. Every state agreed to accept ARPA funding on the condition that it

would not use the money to offset tax breaks. Allowing states to renege on this agreement not

only contravenes the Spending Clause and basic contract law, but it also goes against principles

of equity and fairness. And allowing states to do this harms the public—rather than use ARPA

funds only for the public benefits outlined in § 802(c)(1), states may keep some funding to

balance their own books.

Finally, Tennessee had the option to accept or decline ARPA’s conditional funding, and

we should honor its decision to take the money, conditions and all. If indeed it was concerned

about the Offset Provision and did not want to comply with it, Tennessee could have, and should

have, said no to the federal government’s offer of assistance. Turning down Congress’s

substantial funding offer may have been a difficult one, but doing so would have been a

No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 19

legitimate way for Tennessee to defend its sovereign prerogatives. In this circumstance, Chief

Justice Roberts’s words are particularly poignant:

In the typical case we look to the States to defend their prerogatives by adopting

“the simple expedient of not yielding” to federal blandishments when they do not

want to embrace the federal policies as their own. The States are separate and

independent sovereigns. Sometimes they have to act like it.

National Federation of Independent Business v. Sebelius, 567 U.S. 519, 579 (2012) (opinion of

Roberts, C.J.) (quoting Massachusetts v. Mellon, 262 U.S. 447, 482 (1923)).

In sum, ARPA’s offer of funding passes muster at this juncture. The terms of Congress’s

offer were certain enough to create a contract, permitting Tennessee to make its choice

knowingly and voluntarily. Pennhurst, 451 U.S. at 17. The panel’s use of the clear-statement

rule to enjoin the Offset Provision contravenes fundamental tenets of the Spending Clause

analysis.4 Whatever vagueness exists in the Act is of no moment to our prospective inquiry

today; at most, it may make recoupment actions for the government more difficult tomorrow.

II.

For these reasons, I respectfully dissent and would grant the government’s petition for

rehearing en banc.

ENTERED BY ORDER OF THE COURT

___________________________________

Deborah S. Hunt, Clerk

4I acknowledge that the Eleventh Circuit subsequently held the Offset Provision to be unconstitutional.

West Virginia, 59 F.4th at 1146. But that case is of little support to the panel decision here—while it reached the

same basic result as the panel, it enjoined the Offset Provision as unconstitutional, not as a matter of statutory

interpretation. That conclusion departs from all established precedent that the clear-statement rule is a matter of

statutory interpretation that does not allow such an injunction. See Pennhurst, 451 U.S. at 24–25; accord City of

Pontiac, 584 F.3d at 284 (Sutton, J., concurring); Sandoval v. Hagan, 197 F.3d 484, 495 (11th Cir. 1999), rev’d on

other grounds, Alexander v. Sandoval, 532 U.S. 275 (2001). Consequently, that opinion suffers from similar

downfalls to those described here.