Amicus Curiae Brief — Tennessee, By and Through the Tennessee General Assembly, et al., Petitioners v. Department of State, et al.

No. 19-1137

In the

Supreme Court of the United States

__________________

TENNESSEE, BY AND THROUGH THE TENNESSEE

GENERAL ASSEMBLY, ET AL.,

Petitioners,

v.

DEPARTMENT OF STATE, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

__________________

BRIEF FOR AMICI CURIAE THE EAGLE

FORUM AND THE TENNESSEE EAGLE

FORUM IN SUPPORT OF PETITIONERS

__________________

JOANNE E. BREGMAN

Counsel of Record

6049 Robin Hill Road

Nashville, Tennessee 37205

615-589-9489

jebregman@gmail.com

Counsel for Amici Curiae

April 15, 2020

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Restoring a Constitutionally Defensible

Relationship Between the Federal Government

and the Tennessee Legislature Requires

Granting the Petition for Certiorari . . . . . . . . . . 4

A. The plain language of the Refugee Act of

1980 and its legislative history establish a

clear record of Congress’ intent to reimburse

the first three years of state Medicaid costs

for newly resettled refugees . . . . . . . . . . . . . . 6

B. Congress created the U.S. Office of Refugee

Resettlement and provided specific directions

to reimburse state Medicaid costs which were

not followed by the agency interpreting the

statute and applying its regulations. . . . . . . 10

C. Forcing state legislators to expend state

resources outside of the normal

appropriations process directly interferes

with their duties to the state and to their

constituents . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ii

TABLE OF AUTHORITIES

CASES

Connecticut National Bank v. Germain,

503 U.S. 249 (1992). . . . . . . . . . . . . . . . . . . . . . . . 6

Coyle v. Smith,

221 U.S. 559 (1911). . . . . . . . . . . . . . . . . . . 3, 4, 14

Jennings v. Rodriguez,

138 S. Ct. 830 (2018). . . . . . . . . . . . . . . . . . . . . . 14

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012). . . . . . . . . . . . . . 2, 3, 5, 14, 15

New York v. U.S.,

505 U.S. 144 (1992). . . . . . . . . . . . . . . . . . . . . . . 14

Printz v. U.S.,

521 U.S. 898 (1997). . . . . . . . . . . . . . . . . . 4, 14, 16

Solid Waste Agency of Northern Cook Cty. v.

Army Corps of Engineers (SWANCC),

531 U.S. 159 (2001). . . . . . . . . . . . . 3, 5, 12, 13, 16

Toibb v. Radloff,

501 U.S. 157 (1991). . . . . . . . . . . . . . . . . . . . . . . . 7

STATUTES

8 U.S.C. § 1521(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

8 U.S.C. § 1522(e)(1). . . . . . . . . . . . . . . . . . . 2, 6, 7, 10

8 U.S.C. § 1522(e)(4). . . . . . . . . . . . . . . . . . . 2, 6, 7, 10

iii

REGULATIONS

45 C.F.R. § 400.94(b) . . . . . . . . . . . . . . . . . . . . . . . 2, 7

45 C.F.R. § 400.94(c) . . . . . . . . . . . . . . . . . . . . . . . 2, 7

47 Fed. Reg. 10841 (March 12, 1982) . . . . . . . . 11, 12

59 Fed. Reg. 41417 (1994) . . . . . . . . . . . . . . . . . . 3, 12

OTHER AUTHORITIES

125 Cong. Rec. 35815 (Dec.13, 1979) . . . . . . . . . . . . . 9

Kenneth D. Basch, Federal Responsibilities for

Resettling Refugees, 24 Wash.U.J.Urb. &

Contemp. L. 151 (1983). . . . . . . . . . . . . . . . . . . 4, 5

Edward M. Kennedy, Refugee Act of 1980, 15

International Migration Rev., No.1/2, (SpringSummer 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

David Knudson, Federal Refugee Resettlement

Policy: Asserting the States’ Tenth Amendment

Defense, 8 Hastings Con.Law Quarterly 878

(1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Office of Refugee Resettlement, Report to Congress

(January 31, 1993) . . . . . . . . . . . . . . . . . . . . . . . 12

The Refugee Act of 1979,

H. Rpt. No. 96-608 (1979) . . . . . . . . . . . . . . . . . . . 8

The Refugee Act of 1979,

S. Rpt. No. 96-256 (1979) . . . . . . . . . . . . . . . 3, 7, 8

U.S. Gen. Accounting Office, GAO-HRD-91-51,

Refugee Resettlement: Federal Support to the

States Has Declined (1990). . . . . . . . . . . . . . . . . 12

1

INTEREST OF AMICI1

Eagle Forum is a national organization founded in

1972, by Mrs. Phyllis Schlafly. Its network of statebased chapters share the mission of mobilizing and

mentoring grassroots conservative activists to impact

public policy at all levels of government; from Congress

to state legislatures, to local commissions and boards.

Tennessee Eagle Forum was established as a state

chapter in the late 1970’s. Mrs. Bobbie Patray has led

the chapter as president since 1987. She has provided

thirty-three years of advocacy to members of the

Tennessee General Assembly and on-the-scene

mentoring to countless individuals and organizations

during this time.

Eagle Forum’s state chapters are well known to

their respective state legislatures. Amici’s very first

nationwide mobilization is credited with defeating the

proposed Equal Rights Amendment which was

accomplished by effectively pressuring state

legislatures to stop or rescind passage of the ERA.

Amici’s advocacy in state legislatures on a wide range

of issues has increased significantly since that first

victory. Amici’s advocacy continues to be grounded in

upholding constitutional principles including rights

1

Written notice of intent to file an amicus curiae brief in support

of Petitioners was provided to counsel of record for each party at

least 10 days prior to the filing deadline for amicus curiae briefs in

this case. Counsel of record for each party provided consent for the

filing of this amicus curiae brief. No person or entity other than

counsel for amici authored any part of this brief or contributed

money to fund the preparation or submission of this brief.

2

and protections for individual liberty. Amici’s activism,

particularly at the state level, often involves the

constitutional boundaries between state and federal

governments.

Tennessee Eagle Forum was the first state chapter

to question legislators about their authority to

appropriate state funds when they are being forced by

the federal government to spend some of that state

revenue to support a federal program in which the

state no longer participates. This is the issue which

forms the basis of Petitioners’ Writ for Certiorari. In

keeping with its work to educate and connect the public

to the legislative process, Tennessee Eagle Forum has

used its weekly legislative update to highlight the

efforts of the Tennessee General Assembly to address

this issue through the judicial process.

SUMMARY OF ARGUMENT

The Court in National Federation of Independent

Business v. Sebelius, 567 U.S. 519 (2012), exhorted

states to assert their sovereign status against the

federal government when necessary, “[t]he States are

separate and independent sovereigns. Sometimes they

have to act like it.” Id. at 579. This is precisely the

spirit of the action taken by the Tennessee General

Assembly.

When Congress proposed the Refugee Act, it

understood that they were creating a fiscal burden for

states because states would be legally required to

enroll Medicaid eligible refugees into the entitlement

program at the state’s expense. 8 U.S.C. §§ 1522(e)(1),

(4); 45 C.F.R. § 400.94(b)-(c). This is why the Act’s plain

3

language provides for reimbursing state Medicaid costs

for eligible refugees for three years. In addition, the

Act’s legislative history establishes a “clear indication”

of Congress’ intent to make reimbursement of state

costs a priority in administering the Act. The Refugee

Act of 1979, S. Rpt. No. 96-256 at 11 (1979); Solid

Waste Agency of Northern Cook Cty. v. Army Corps of

Engineers, 531 U.S. 159, 172 (2001).

The U.S. Department of Health and Human Services

(HHS) and the Office of Refuge Resettlement (ORR),

despite explicit directions from Congress and a

recognition that the Refugee Act of 1980 created a

fiscal burden for the states, eliminated all

reimbursement to states for refugee Medicaid costs,

thereby shifting to the states, costs that were supposed

to be the responsibility of the federal government. The

unconstitutional cost shifting, Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. at 577-78, was made even

more onerous when HHS/ORR promulgated a new

regulation which permitted states to withdraw from

the refugee program but remain liable for the cost that

was supposed to be covered by the federal government.

59 Fed. Reg. 41417, 4121 (1994).

Administration of the Refugee Act is in conflict with

Congress’ explicit directions for state reimbursement

and forces all state legislators in the Tennessee

General Assembly to violate their Constitutional duties

to appropriate state funds and balance the state

budget. Congress may not undermine a “necessary

attribute [of] an independent sovereign government”

Coyle v. Smith, 221 U.S. 559, 575 (1911), including the

power to “appropriate its own public funds,” when this

4

power has not been delegated to the federal

government. Id. at 565. To permit otherwise is a direct

affront to the framework of dual sovereignty set forth

in the Constitution. Printz v. U.S., 521 U.S. 898, 920

(1997).

Absent a grant of standing, Tennessee’s legislature

will be denied a venue to stop the federal government’s

interference in the execution of its exclusive power and

duties relative to the handling of state funds. The

Court has no power to control the budgetary challenge

facing Petitioners from the deadly and economically

devastating March tornadoes and COVID pandemic.

However, the “siphon[ing] of state funds - at any time

and in any amount” by the federal government, “to help

pay for a federal program from which Tennessee has

withdrawn,” is well within the Court’s discretion to

address. Petition for a Writ of Certiorari, Tennessee

General Assembly v. U.S. Department of State, No.191137 at 2 (March 13, 2020). Petitioners’ Writ of

Certiorari should be granted.

ARGUMENT

I. Restoring a Constitutionally Defensible

Relationship Between the Federal

Government and the Tennessee Legislature

Requires Granting the Petition for Certiorari

Long before the federal government reneged on its

promise to reimburse 100% of state Medicaid costs for

new refugees and instead, shifted the cost to states, it

was predicted that Congress’ Spending power would

put the Refugee Act on a collision course with the

Tenth Amendment. Kenneth D. Basch, Federal

5

Responsibilities for Resettling Refugees, 24

Wash.U.J.Urb. & Contemp. L. 151 (1983); David

Knudson, Federal Refugee Resettlement Policy:

Asserting the States’ Tenth Amendment Defense, 8

Hastings Con.Law Quarterly 878 (1981).

Congress’ plenary power to admit aliens, including

refugees, is undisputed. But “[o]nce an alien has

entered the country, however, this constitutional power

loses force” Basch, supra at 181, and Congress’

Spending power becomes essential to meeting the

objectives of the Act. Presumably, “... refugee

resettlement programs are exercises of Congress’

Spending power and are thus subject to the limits of

that power.” Id. at 182.

Congress may use its Spending power to encourage

or induce states to adopt federal policies, but it cannot

go so far as to try and compel states to use their limited

resources to fund federal programs. Nat’l Fed’n of

Indep. Bus. v. Sebelius, 567 U.S. 519, 577-78 (2012).

Once the promised reimbursement for Medicaid

expenditures was stopped and the costs shifted to the

state, the “federal-state balance” was breached.

SWANCC v. Army Corps of Engineers, 531 U.S. 159,173

(2001). Even after Tennessee officially withdrew from

the refugee resettlement program the federally forced

state expenditures didn’t stop and any remnant of a

Constitutionally defensible relationship between the

federal government and the Tennessee General

Assembly was extinguished. In Sebelius, the Court

exhorted states to assert their sovereign status against

the federal government when necessary. Id. at 579.

Petitioners have done precisely what the Court

6

advised. Heeding the Court will prove meaningless

unless Petitioner’s Writ of Certiorari is granted.

To date, the federal program costs continue to

bypass the legislature’s appropriations process and be

imposed on the state’s budget. All state legislators

continue to be forced to violate their Constitutional

duties to appropriate state funds and balance the

state’s budget, and as such, suffer an institutional

injury. Petition for a Writ of Certiorari, Tennessee

General Assembly v. U.S. Department of State, No.191137 at 16-17 (March 13, 2020).

A. The plain language of the Refugee Act of

1980 and its legislative history establish a

clear record of Congress’ intent to

reimburse the first three years of state

Medicaid costs for newly resettled

refugees.

The Refugee Act of 1980 states unambiguously that

states would be reimbursed 100% of their cost of

Medicaid for three years for newly resettled refugees.

8 U.S.C. §§ 1522(e)(1), (4). “We have stated time and

again that courts must presume that a legislature says

in a statute what it means and means in a statute what

it says there. When the words of a statute are

unambiguous, then, this first canon is also the last:

‘judicial inquiry is complete.’” Connecticut National

Bank v. Germain, 503 U.S. 249, 253-254 (1992).

If the Court is not persuaded by the explicit

language of the statute, any question regarding state

cost reimbursement is confirmed by the Act’s

legislative record. “First, this Court has repeated with

7

some frequency: ‘Where, as here, the resolution of a

question of federal law turns on a statute and the

intention of Congress, we look first to the statutory

language and then to the legislative history if the

statutory language is unclear.’” Toibb v. Radloff, 501

U.S. 157, 162 (1991).

The Refugee Act’s legislative history is emphatic

regarding Congress’ intent to reimburse state Medicaid

costs for newly resettled refugees. Members of

Congress well understood that bringing refugees to the

U.S. was as much about humanitarian objectives as it

was about money and real estate; that is, who would

pay for what and where refugees would be placed once

they arrived. Congress had to take state financial

concerns seriously and commit to reimbursing states as

a priority because the Act created a fiscal catch-22 for

states regarding entitlement programs like Medicaid.

If states agreed to resettle refugees, they would have

no choice but to enroll eligible refugees into statefunded Medicaid programs which refugees access

immediately upon arrival. 8 U.S.C. § 1522(e)(1), (4); 45

C.F.R. § 400.94(b)-(c).

The Senate proposed two years of refugee cash and

medical assistance attached to state cash and Medicaid

entitlement programs “… provided through a 100

percent reimbursement to the States for all refugees

who do not qualify for the regular AFDC-Medicaid

programs. For those who do qualify for the regular

programs, the funds cover the State’s portion of

payment for these services.” The Refugee Act of 1979,

S. Rpt. No. 96-256 at 11 (1979).

8

One Senator predicted that the new program could,

like other federal programs, become fiscally

detrimental for the states if the promise wasn’t kept.

This is precisely where Tennessee finds itself today:

The final concern I have has to do with the issue

of the withdrawal of the Federal Government

from the system after 2 years and the States’

bearing the full financial burden. We hear that

in our travels at the State level. People of the

States are very frustrated at the Federal

Government beginning a program, whatever it

may be, with the State in full participation and

then suddenly withdrawing and saying, ‘Here

you are.’ What response have you had from the

State governments, Governors, mayors and

municipality officials with regard to that issue?

Id. at 12.

The 1979 House Report was specific that the

“underlying purpose” of federal medical and cash

assistance for refugees was to “… insure that state and

local governments are not adversely impacted by

Federal decisions to admit refugees.” The Refugee Act

of 1979, H. Rpt. No. 96-608 at 180 (1979).

To that end, bill co-sponsor Representative

Elizabeth Holtzman, pushed to reimburse 4 full years

of state cost as opposed to the Senate’s proposed twoyear limit:

In my judgment, it is essential that we continue

to receive the full support of State governments

for our refugee programs; I believe that we

would jeopardize that support and cooperation if

9

we were to transfer the resettlement burden to

the States after the refugees have been in the

country for only 2 short years. While most

refugees are quickly integrated into American

society, some adjustment problems do occur in

the first few years and I do not believe we should

require States to respond to these residual

problems with their own resources. In short, full

reimbursement for a 4-year period represents, in

the committee’s judgment, a proper allocation of

Federal and State responsibilities for the care

and resettlement of refugees.

125 Cong. Rec. 35815 (Dec.13, 1979)

A conference committee reconciled the issue of

federal assistance settling on three years of federal

support. According to the Act’s leading sponsor Senator

Ted Kennedy, the duration of federal support was “the

widest difference between the Senate and House

versions.” In his paper tracing the legislative history of

the 1980 Act, Kennedy confirms that reimbursement to

states was a key consideration driving the newly

created program:

The widest difference between the Senate and

House versions of the Act was on domestic

resettlement assistance. Because the admission

of refugees is a federal decision and lies outside

normal immigration procedures, the federal

government has a clear responsibility to assist

communities in resettling refugees and helping

them to become self-supporting. The basic

issues here [in conference committee] were the

length of time of federal responsibility and the

10

method of its administration. State and local

agencies were insistent that federal assistance

must continue long enough to assure that local

citizens will not be taxed for programs they did

not initiate and for which they were not

responsible.

Edward M. Kennedy, Refugee Act of 1980, 15

International Migration Rev., No.1/2, (Spring-Summer

1981), 141, 151.

Buffering the financial impact on states was critical

to gaining state cooperation which is why making

reimbursement to the states for state entitlement

program expenditures was an explicit priority in

administering the Act.

B. Congress created the U.S. Office of Refugee

Resettlement and provided specific

directions to reimburse state Medicaid

costs which were not followed by the

agency interpreting the statute and

applying its regulations.

The Refugee Act created the U.S. Office of Refugee

Resettlement (ORR), a new agency with a Director

position within the U.S. Department of Health and

Human Services (HHS). 8 U.S.C. § 1521(a). Congress

instructed ORR’s Director to reimburse states 100% for

three years of their Medicaid cost for newly arriving

refugees. 8 U.S.C. §§ 1522(e)(1), (4). Initially HHS/ORR

followed the directions laid out by Congress.

To serve the priority to reimburse states when

Congress reduced its appropriations for refugee

assistance, HHS/ORR began reducing the federal

11

subsidy only for refugees ineligible for entitlement

programs as a means to “… reduce total refugee

welfare costs while continuing to relieve States of

refugee cash and medical assistance costs during a

refugee’s first 36 months in this country.” 47 Fed. Reg.

10841, 10842 (March 12, 1982). Without question

HHS/ORR understood that a fiscal catch-22 for states

was built into the Refugee Act and that it was

“Congress’ intent that States and local governments

‘will not be unduly burdened by Federal decisions to

admit refugees.’” Id.

While HHS/ORR sharply curtailed federal

assistance to states for refugees who were not eligible

for Medicaid – i.e. “costs which the States are under no

legal obligation to incur”, it affirmed its obligation to

follow directions from Congress to cover costs for

refugees who were in the Medicaid program since these

are costs the state is legally obligated to cover but

which the federal government promised to pay:

… the Department’s specific policy decisions

reflected in these regulations were very much

influenced by the recognition of continued

responsibility to the States. It is for this reason

that the rules continue to provide for 100%

reimbursement for State cash and medical

assistance costs during a full 36 month period

with respect to refugees and entrants who

qualify for benefits under jointly administered

Federal/State programs such as AFDC and

Medicaid ….

Thus, the rules continue to reflect a Federal

willingness to accept responsibility for costs of

12

assistance actually incurred by States on behalf

of refugees during their first three years in this

country. The Federal reimbursement to States

which is discontinued under these rules after an

18 month period only relates to assistance

costs which the States are under no legal

obligation to incur in the absence of coverage

under the federally funded RCA [refugee cash

assistance] and RMA [refugee medical

assistance] programs ….

Thus, it does not transfer costs to the States or

localities.

Id. at 10844 (emphasis added).

In a drastic repudiation of Congress’ commitment to

states, however, HHS/ORR eliminated all

reimbursement to states for Medicaid eligible refugees

and as documented in federal reports, shifted these

costs to the states.2 Subsequent promulgation of the

withdrawal rule compounded the cost shift by enabling

it to continue even after a state withdrew from the

program. 59 Fed.Reg. 41417, 4121 (1994). Neither the

cost shift nor the withdrawal rule are within the scope

of the regulatory authority intended by the enabling

legislation. SWANCC v. Army Corps of Engineers, 531

U.S. 159,172-73 (2001).

2

U.S. Gen. Accounting Office, GAO-HRD-91-51, Refugee

Resettlement: Federal Support to the States Has Declined (1990);

Office of Refugee Resettlement, Report to Congress at 20 (January

31, 1993).

13

In SWANCC the Court rejected the Army Corp of

Engineers’ use of their migratory bird rule to broaden

its regulatory authority over isolated waters under the

Clean Water Act. The Court held that the Corps’

application of the bird rule for this purpose, was not

supported by the statute’s language, its legislative

history (which respondent “admit[ted]… is somewhat

ambiguous”), Id. at 168 n.3, or a “clear indication” of

Congress’ intent. Id. at 172.

The Court did not reach the question of whether the

Commerce Clause could fill the jurisdictional gap for

the Corps, but intimated that the Corps would have

fared no better because under a Commerce Clause

analysis the “significant constitutional questions raised

by [the Corps’] application of their regulations”

intruded on areas of traditional state authority. Id.

Where an administrative interpretation of a

statute invokes the outer limits of Congress’

power, we expect a clear indication that

Congress intended that result. This requirement

stems from our prudential desire not to

needlessly reach constitutional issues and our

assumption that Congress does not casually

authorize administrative agencies to interpret a

statute to push the limit of congressional

authority. This concern is heightened where the

administrative interpretation alters the federalstate framework by permitting federal

encroachment upon a traditional state power.

Id. at 172-173 (internal citations omitted).

14

The statutory language of the Refugee Act and the

legislative history are consistent and establish a clear

record on which the Court can rely as to the issue of

reimbursing the state Medicaid cost. This more than

reasonable interpretation of the Refugee Act offers a

way for the Court to “cure” the problem caused by

HHS/ORR’s actions which infringe on Petitioners’

power to “appropriate its own public funds,” Coyle v.

Smith, 221 U.S. 559, 565 (1911), without having to

wade into the constitutional status of the Refugee Act

itself. See, Jennings v. Rodriguez, 138 S. Ct. 830, 842

(2018).

C. Forcing state legislators to expend state

resources outside of the normal

appropriations process directly interferes

with their duties to the state and to their

constituents.

Congress may not commandeer a state’s legislative

process, New York v. U.S., 505 U.S. 144, 161 (1992) or

impair “necessary attributes as an independent

sovereign government” which have not been delegated

to the federal government, Coyle v. Smith, 221 U.S. at

575, including the power to “appropriate its own public

funds” for a purpose within the explicit authority of a

state’s legislature Id. at 565. It may not force a state to

administer a federal program, Printz v. U.S., 521 U.S.

898, 930 (1997), or fund a federal program, Nat’l Fed’n

of Indep. Bus. v. Sebelius, 567 U.S. 519, 577-78.

States are supposed to be able to reject an offer of

federal funds and the conditions attached to the money.

But the HHS/ORR withdrawal rule promulgated after

all promised reimbursement to the states was

15

eliminated, enables an end-run around what Congress

intended in the Refugee Act. “Permitting the Federal

Government to force the States to implement a federal

program would threaten the political accountability key

to our federal system …. Spending Clause programs do

not pose this danger when a State has a legitimate

choice whether to accept the federal conditions in

exchange for federal funds.” Id. at 578.

That “legitimate choice” is not available to the

Tennessee General Assembly. Whichever option

Tennessee chooses—administer the federal refugee

program and absorb the shifted federal costs, withdraw

and continue to be forced to absorb the shifted federal

costs, or refuse to enroll Medicaid eligible refugees and

jeopardize 20% of the state budget, the rules attached

to the resettlement program and Medicaid create the

“compulsion” rejected by Sebelius. Id. at 577. If the

federal government cannot compel a state to fund

federal programs, then a state should not be forced to

divert funding from essential and traditional state

government services in order to operationalize a federal

program from which the state has withdrawn.

Tennessee’s legislature is constitutionally bound to

provide for the public’s health, safety and general

welfare. These Tenth Amendment powers are

impermissibly threatened by federally coerced

spending for the refugee resettlement program,

especially at a time when the needs of Tennessee’s

citizens are dire.

This false choice violates a core principle of dual

sovereignty, “a legal system unprecedented in form and

design, establishing two orders of government, each

16

with its own direct relationship, its own privity, its own

set of mutual rights and obligations to the people who

sustain it and are governed by it.” Printz v. U.S., 521

U.S. at 920. The limits on Congress’ Spending power

must apply equally to Petitioners’ case if the

Constitutional federal-state balance is to be restored.

SWANCC v. Army Corps of Engineers, 531 U.S at 173.

Coincident with the COVID-19 pandemic, a series

of seven deadly tornadoes ripped through 100 miles of

Tennessee counties resulting in 25 deaths, hundreds of

homes and businesses and schools destroyed, and the

Governor declaring a state of emergency. On the heels

of this extreme tragedy, another state of emergency

was declared due to the climbing numbers of

coronavirus victims. All of this has worsened the

situation for Tennessee’s fifteen distressed counties

which fall within the top 10 percent of economically

distressed counties in the U.S.

Prior to adjourning prematurely to help contain the

spread of COVID-19, the General Assembly passed a

bare-bones, mission critical budget which lowered the

growth rate of the current fiscal year and projected a

decreased growth rate for the upcoming fiscal year.

Skyrocketing unemployment claims (over 200,000 at

the beginning of April), and other necessary measures

to address the COVID pandemic on top of the tornado

crisis, have brought unanticipated state expenses and

state revenue shortfalls. The cost and timeline for the

State’s recovery remains undetermined. It is also

unknown how many more Tennesseans may become

Medicaid-eligible as a result of these twin crises.

17

The federal refugee program is only temporarily

suspended. Once restarted, it will again impose

burdensome costs on the state budget from refugee

entrants who rely heavily on the Medicaid entitlement

program. The challenge for Tennessee’s General

Assembly to effectively meet the fiscal, health and

safety needs across the State will impact the current

and next year’s budget which begins on July 1, 2020.

The legislature’s task of managing these budgets is

compounded by the different start dates of the state

and federal fiscal years with the federal government

being able to “siphon state funds—at any time and in

any amount—to help pay for a federal program from

which Tennessee has withdrawn.” Petition for a Writ of

Certiorari, Tennessee General Assembly v. U.S.

Department of State, No.19-1137 at 2 (March 13, 2020).

There is no room in the Constitution’s framework to

permit the federal government or its agencies to take

state funds without the express consent of the state’s

appropriating body. The Court confirmed this limit

when it held that a federal action which interferes with

the state’s control over its own budget is not

permissible. It is incumbent on this Court to protect

the legitimacy of dual sovereignty under which

Congress’ Spending power is exercised.

18

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JOANNE E. BREGMAN

Counsel of Record

6049 Robin Hill Road

Nashville, Tennessee 37205

615-589-9489

jebregman@gmail.com

Counsel for Amici Curiae