Amicus Curiae Brief — Kenneth J. Jouppi, Petitioner v. Alaska

No. 25-246

In the

Supreme Court of the United States

______________

KENNETH JOHN JOUPPI,

Petitioner,

v.

STATE OF ALASKA,

Respondent.

______________

On Writ of Certiorari to the

Supreme Court of Alaska

______________

BRIEF OF AMERICAN FREE ENTERPRISE

CHAMBER OF COMMERCE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

______________

MICHAEL BUSCHBACHER

Counsel of Record

WALKER FORTENBERRY

BOYDEN GRAY PLLC

800 Connecticut Ave. NW,

Suite 900

Washington, DC 20006

(202) 955-0620

mbuschbacher@boydengray.com

i

QUESTION PRESENTED

1. Whether, in determining whether a fine

contravenes the Excessive Fines Clause, courts may

consider the gravity of the underlying offense purely

in the abstract or should consider the gravity of the

specific defendant’s wrongdoing.

ii

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

ARGUMENT .............................................................. 5

I.

II.

THE ORIGINAL MEANING OF THE EXCESSIVE FINES

CLAUSE REQUIRES REVERSAL .............................. 5

A.

Historical Practice Demonstrates that the

Excessive Fines Clause Contains

Proportionality and Salvo Contenemento

Principles ..................................................... 5

B.

The Decision Below Disregarded Original

Meaning and Precedent ............................ 11

THE EXCESSIVE FINES CLAUSE PROTECTS

AMERICAN BUSINESSES FROM RUINOUS CIVIL

PENALTIES.......................................................... 13

A.

State and Local Governments Are

Targeting Disfavored Businesses with

Ruinous Civil Penalties to Achieve National

and Global Policy Changes ....................... 14

B.

The Clause’s Protections Extend to Civil

Penalties Against Businesses ................... 18

C.

A Robust Excessive Fines Clause Would

Mitigate This Abuse .................................. 21

CONCLUSION ......................................................... 23

iii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Austin v. United States,

509 U.S. 602 (1993) ........................................ 14, 18

Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc.,

492 U.S. 257 (1989) .......................................... 5, 10

Colo. Dep’t of Lab. & Emp’t v.

Dami Hosp., LLC,

442 P.3d 94 (Colo. 2019) ................................ 14, 20

Duling Enters., LLC v. Dep’t of Lab. & Indus.,

573 P.3d 936 (Wash. Ct. App. 2025).................... 20

Harmelin v. Michigan,

501 U.S. 957 (1991) .............................................. 17

Hudson v. United States,

522 U.S. 93 (1997) ................................................ 18

Hunter v. United States,

146 S. Ct. 1702 (2026) .......................................... 21

Jouppi v. State,

566 P.3d 943 (Alaska 2025) ..................... 11, 12, 13

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) .............................. 14

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) .................................................... 5

iv

Retail Prop. Tr. v. Nassau Cnty. Dep’t of

Assessment,

2026 WL 2263300 (2d Cir. Aug. 6, 2026) ............ 20

Robson 200, LLC v. City of Lakeland,

593 F. Supp. 3d 1110 (M.D. Fla. 2022) ............... 20

SEC v. Jarkesy,

603 U.S. 109 (2024) .............................................. 11

Sessions v. Dimaya,

584 U.S. 148 (2018) .............................................. 22

Smith v. Condry,

42 U.S. (1 How.) 28 (1843) ................................... 22

State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003) ................................................ 7

State v. Grocery Mfrs. Ass’n,

461 P.3d 334 (Wash. 2020) .................................. 15

State v. Grocery Mfrs. Ass’n,

502 P.3d 806 (Wash. 2022) .................................. 15

State v. Meta Platforms, Inc.,

590 P.3d 1099 (Wash. 2026) ................................ 16

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) .............................................. 18

Timbs v. Indiana,

586 U.S. 146 (2019) ................ 4, 5, 9, 10, 14, 15, 19

Toth v. United States,

143 S. Ct. 552 (2023) ............................................ 18

v

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) .............................................. 20

United States v. Bajakajian,

524 U.S. 321 (1998) ................................ 2, 5, 10, 12

United States v. Chouteau,

102 U.S. 603 (1881) .............................................. 18

United States v. Halper,

490 U.S. 435 (1989) .............................................. 18

Yates v. Pinellas Hematology & Oncology, P.A.,

21 F.4th 1288 (11th Cir. 2021) ............................ 10

COURT FILINGS

Compl., City of Hoboken v. Exxon Mobil Corp.,

No. HUD-L-003179-20 (N.J. Super. Ct.

Sept. 2, 2020)........................................................ 16

Compl., District of Columbia v. Exxon Mobil

Corp., No. 2020 CA 002892 B

(D.C. Super. Ct. June 25, 2020) ........................... 16

Compl., State v. Am. Petroleum Inst.,

No. 62-CV-20-3837 (Minn. Dist. Ct.

Ramsey Cnty. June 24, 2020) .............................. 16

Compl., State v. Facebook, Inc.,

No. 20-2-07774-7 (Wash. Super. Ct. King

Cnty. Apr. 14, 2020) ............................................. 18

vi

Compl., State v. Grocery Mfrs. Ass’n,

No. 13-2-02156-8 (Wash. Super. Ct. Thurston

Cnty. Oct. 16, 2013) ............................................. 18

Meta’s Submission Regarding State AG

Penalty and Disgorgement Charts

and Supporting Materials, In re Soc.

Media Adolescent Addiction/Pers.

Inj. Prods. Liab. Litig.,

No. 4:22-md-03047-YGR (N.D. Cal.

July 6, 2026), Dkt. No. 3237 ................................ 17

Stip. & Agreed Am. J., State v. Grocery

Mfrs. Ass’n, No. 13-2-02156-8

(Wash. Super. Ct. Thurston Cnty.

Mar. 2, 2022) .................................................. 15, 16

STATUTES

D.C. Code § 28-3909(b) .............................................. 16

Minn. Stat. § 8.31, subdiv. 3 ..................................... 16

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII .............................................. 2

HISTORICAL ENACTMENTS

Declaration of Rights of 1689, 1 Wm. &

Mary, 2d Sess., ch. 2 (1689), 3 Stat.

at Large 440 (1762 ed.) .......................................... 8

Magna Carta, 9 Hen. III, ch. 14 (1225),

1 Stat. at Large 6–7 (1762 ed.) .................... 2, 7, 11

Va. Decl. of Rts. § 9 (1776) .......................................... 9

vii

OTHER AUTHORITIES

Alex Brown, Some Cities, States Say Big

Oil Should Pay for Climate Damage,

Stateline (Apr. 13, 2022),

https://perma.cc/7VCW-F7F3 .............................. 20

Allan Nevins, The American States

During and After the Revolution,

1775–1789 (1924) ................................................... 9

1 Annals of Cong. (1789) (Joseph Gales

ed., 1834) ................................................................ 9

Beth A. Colgan, Reviving the Excessive Fines

Clause, 102 Cal. L. Rev. 277 (2014)............. 6, 7, 13

C.S. Lewis, Surprised by Joy (Harper

ed., 2017) ................................................................ 3

Charter of Liberties and Privileges, Oct.

30, 1683, reprinted in 1 America’s

Founding Charters 177 (Jon L.

Wakelyn ed., 2006) ................................................. 9

David Arkush & Donald Braman,

Climate Homicide: Prosecuting Big

Oil for Climate Deaths, 48 Harv.

Envtl. L. Rev. 45 (2024) ....................................... 20

2 Edward Coke, The Selected Writings

and Speeches of Sir Edward Coke

(Steve Sheppard ed., 2003) ................................ 6, 7

viii

The Federalist Soc’y, Can State Courts Set

Global Climate Policy?, YouTube (Oct. 8,

2025), https://youtu.be/1wyxaE4TC-A?si=

Q3WrfVZpKF7AmDcW&t=2007 ......................... 19

Jessica L. Asbridge, Fines, Forfeitures, and

Federalism, 111 Va. L. Rev. 67 (2025) ................ 21

Lois G. Schwoerer, The Declaration of

Rights, 1689 (1981) ............................................ 7, 8

Nicholas M. McLean, Livelihood, Ability

to Pay, and the Original Meaning of

the Excessive Fines Clause, 40

Hastings Const. L.Q. 833 (2013) ......... 5, 6, 7, 8, 13

Pennsylvania Frame of Government,

Laws Agreed Upon in England, Art.

XVIII (1682), reprinted in 1 The

Roots of the Bill of Rights 141

(Bernard Schwartz ed., 1971) ................................ 9

Press Release, Cal. Dep’t of Justice, Off.

of the Att’y Gen., Attorney General

Bonta Secures Transformative $17

Billion Settlement with Meta,

Proposed Settlement Includes

Fundamental Changes to Instagram

and Facebook (Aug. 26, 2026),

https://perma.cc/7RWT-REJU ............................. 17

Robert H. Jackson, Att’y Gen. of the

U.S., The Federal Prosecutor,

Address at the Second Annual

Conference of United States

Attorneys (Apr. 1, 1940) ...................................... 15

ix

4 William Blackstone, Commentaries on

the Laws of England (1769) ......................... 6, 8, 12

The Works of the Right Honourable

Henry late L. Delamer, and Earl of

Warrington (1694). ............................................. 7, 8

1

INTEREST OF AMICUS CURIAE 1

Formed in 2022, the American Free Enterprise

Chamber of Commerce (“AmFree”) is a business

league organization that represents hard-working

entrepreneurs and businesses across all sectors of the

U.S. economy. AmFree’s members are vitally

interested in protecting the continued viability of our

commercial republic, including by protecting their

businesses from excessive monetary penalties.

AmFree launched the Center for Legal Action to

represent these interests in court.

1 No party’s counsel authored this brief in whole or in part,

and no person or entity other than amicus or its counsel

made a monetary contribution intended to fund its

preparation or submission.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

“A Free-man shall not be amerced 2 for a small

fault, but after the manner of the fault; and for a great

fault after the greatness thereof, saving to him his

contenement; and a Merchant likewise, saving to him

his merchandise.” Magna Carta, 9 Hen. III, ch. 14

(1225), 1 Stat. at Large 6–7 (1762 ed.). Proclaimed at

Runnymede in 1215, those words shielded individuals

and their business interests from the Crown’s

capricious imposition of ruinous fines. Centuries later,

the Founders enshrined that same protection in the

Eighth Amendment: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend.

VIII (emphasis added).

An unbroken line of historical practice, from

Magna Carta to the Founding, shows that monetary

penalties were not excessive if they satisfied two

principles: proportionality and salvo contenemento.

Proportionality required a reasonable relationship

between the size of the fine and the severity of the

defendant’s offense. And salvo contenemento

guaranteed offenders the right to be free from fines

that would deprive them of their economic livelihood.

Those principles required looking at the offender’s

specific conduct and circumstances, because any

offense, viewed at a sufficient level of abstraction,

could justify a catastrophic penalty. This Court has

repeatedly reaffirmed that the Eighth Amendment’s

Excessive Fines Clause, as originally understood,

2 Amercements were “the medieval predecessors of fines.”

United States v. Bajakajian, 524 U.S. 321, 335 (1998).

3

embraced those principles, which continue to

constrain the size of fines that federal and state

governments may impose.

The decision below ignored the Excessive Fines

Clause’s original meaning and upheld a grossly

disproportionate penalty: an airplane forfeited for a

six-pack of contraband beers. The Alaska Supreme

Court reached this astonishing result because it

measured proportionality without reference to the

defendant’s specific conduct, abstracted the offense to

a high level of generality, and imputed to the

defendant

all

its

attendant

society-wide

consequences. Cf. C.S. Lewis, Surprised by Joy 45–46

(Harper ed., 2017) (“The ludicrous disproportion

between such harangues and their occasions puts me

in mind of the advocate in Martial who thunders

about all the villains of Roman history while

meantime lis est de tribus capellis—‘This case, I beg

the court to note, Concerns a trespass by a goat.’”). And

the court below entirely disregarded salvo

contenemento, upholding the forfeiture of the property

by which the defendant earned his living. Our

forebears knew better. The Alaska Supreme Court’s

approach cannot be squared with more than five

centuries of history that led to the Eighth

Amendment’s Excessive Fines Clause or this Court’s

precedent embracing and continuing that history.

This Court should say so in the clearest terms.

Reaffirming the original meaning of the Excessive

Fines Clause has implications well beyond this

airplane and this six-pack. The Clause’s reach is not

limited to criminal penalties or to individuals, but

applies to civil fines and businesses alike. That

protection matters now more than ever, as state and

local governments increasingly seek to use the state

4

judicial system to impose grossly disproportionate and

enterprise-crippling penalties on a selection of

politically disfavored businesses. Masquerading as

routine applications of state laws, these suits threaten

bankrupting liability for diffuse alleged public harms,

often stacking per-violation statutory penalties into

astronomical sums and then trebling them. State and

local prosecutors weaponize this enforcement to line

public coffers and often target core political speech for

political ends that even proponents concede are

unattainable through the democratic process. These

penalties are, by design, disproportionate to the

defendants’ actual conduct and, if enforced, could

destroy entire industries and restructure the

American economy. Recognizing the existential threat

these lawsuits pose to their operations, many

businesses have little choice but to settle, regardless

of the merits of the claims against them, which

insulates this abusive practice from judicial review.

These concerns are precisely what motivated the

Excessive Fines Clause, which was fashioned to

curtail the King’s excesses. The Constitution does not

permit state and local governments to extort

businesses with disproportionate fines for political

purposes or to offset budget deficits. Properly applied,

the Excessive Fines Clause and the principles

delimiting its protections rein in these abuses. “For

good reason,” the Constitution prohibits overbearing

and oppressive monetary sanctions disconnected from

the underlying conduct causing the harm. Timbs v.

Indiana, 586 U.S. 146, 153 (2019). This Court should

reaffirm those protections and reverse the judgment

below.

5

ARGUMENT

I.

THE ORIGINAL MEANING OF THE EXCESSIVE

FINES CLAUSE REQUIRES REVERSAL

The Excessive Fines Clause was not drafted on a

blank slate but codified a preexisting right, dating

back to at least Magna Carta, with a “historically

fixed meaning.” N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1, 28 (2022). Monetary penalties must

be proportionate to the offender’s actual conduct and

not destroy the offender’s livelihood, which this

Court’s Eighth Amendment jurisprudence affirms.

The decision below honored neither history nor

precedent and should be reversed.

A. Historical Practice Demonstrates that

the Excessive Fines Clause Includes

Proportionality and Salvo Contenemento

Principles

The Excessive Fines Clause “traces its venerable

lineage” to Magna Carta. Timbs, 586 U.S. at 151.

Designed “to reduce arbitrary royal power, and in

particular to limit the King’s use of amercements as a

source of royal revenue, and as a weapon against

enemies of the Crown,” Browning-Ferris Indus. of Vt.,

Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 270–71

(1989), Magna Carta’s prohibition on excessive fines

contained two cardinal principles: proportionality and

salvo contenemento. Nicholas M. McLean, Livelihood,

Ability to Pay, and the Original Meaning of the

Excessive Fines Clause, 40 Hastings Const. L.Q. 833,

865–66 (2013); United States v. Bajakajian, 524 U.S.

321, 335–36 (1998).

6

Proportionality meant consideration of the

specific defendant’s conduct. Blackstone explained

that the “aggravations or otherwise of the offence” and

“the quality and condition of the parties” were

relevant to the excessiveness inquiry. 4 William

Blackstone, Commentaries on the Laws of England

*371 (1769); see also id. at *373 (explaining that it was

common practice to “tax and moderate the general

amercement

according

to

the

particular

circumstances of the offence and offender”).

Subsequent provisions of Magna Carta reinforce that

point. Beth A. Colgan, Reviving the Excessive Fines

Clause, 102 Cal. L. Rev. 277, 321 n.223 (2014) (citing

Magna Carta chs. 21–22 (directing that amercements

against earls and barons be issued “only in proportion

to the measure of the offense,” and the same

treatment for clerks)).

Salvo contenemento—literally, “saving his

contenement,” i.e., the means and property necessary

to maintain one’s social rank, was an “economicsurvival principle,” McLean, supra, at 860, that

insulated offenders from oppressive penalties by

ensuring “that their ability to maintain a livelihood be

saved,” Colgan, supra, at 321. This protection applied

to all, from the “wainage” of “villeins” (feudal serfs), to

the estates of freemen and nobles, to “Merchandise” of

merchants, preserving for every rank “a minimum

core level of economic viability.” McLean, supra, at

855–56. Lord Coke explained that salvo contenemento

protected business interests because “trade and

traffique is the livelihood of a merchant, and the life

of the commonwealth, wherein the king and every

subject hath interest.” 2 Edward Coke, The Selected

7

Writings and Speeches of Sir Edward Coke 814 (Steve

Sheppard ed., 2003).

Critically, salvo contenemento operated in only

one direction; a clause that saved the offender’s

livelihood from a ruinous fine could only reduce, not

enlarge, the penalty. Cf. State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408, 427–28 (2003) (“The

wealth of a defendant cannot justify an otherwise

unconstitutional punitive damages award.”). Salvo

contenemento was also “complementary, but distinct”

from the proportionality requirement. McLean, supra,

at 836; see also Colgan, supra, at 321 (describing the

principle as “a separate and distinct consideration

from the proportionality”). Magna Carta set the

amount of an amercement by “the manner of the

fault,” then further limited it: “saving to him his

contenement.” Magna Carta, supra, ch. 14. A lawful

fine had to satisfy both principles.

Despite Magna Carta’s twin guarantees of

proportionality and salvo contenemento, by the

seventeenth century, there were numerous “incidents

of judicial abuse.” Lois G. Schwoerer, The Declaration

of Rights, 1689, at 90–91 (1981); see also 2 Coke,

supra, at 815 & n.23 (quoting Cicero’s maxim that

“[w]e have a certain … enactment, but it lies buried in

the tablets like a sword in its sheath”) (translation by

the editor). The notorious Court of Star Chamber

imposed heavy fines on the king’s enemies, which

contemporary commentators decried as “inconsistent

with the Law of England, which is the Law of Mercy”

and “with Salvo Contenimento.” The Works of the

Right Honourable Henry late L. Delamer, and Earl of

Warrington 574 (1694). Even after Star Chamber was

8

abolished by statute in 1641, “the Mischief remain’d.”

Id. “[T]owards the end of Charles II’s reign, the

courts” continued to “impose[] ruinous fines on the

critics of the crown” without regard to proportionality

or the livelihoods of the offenders. Schwoerer, supra,

at 91.

To address these abuses, Parliament recodified

the prohibition against excessive fines in the

Declaration of Rights of 1689, providing that

“excessive Bail ought not to be required, nor excessive

Fines imposed; nor cruel and unusual Punishments

inflicted.” 1 Wm. & Mary, 2d Sess., ch. 2 (1689), 3 Stat.

at Large 440, 441 (1762 ed.). This provision

“reaffirmed ancient law,” Schwoerer, supra, at 92,

including the principles of proportionality and salvo

contenemento,

McLean,

supra,

at

865–66.

Commenting on this prohibition, Blackstone

explained that any fine must take into consideration

the defendant’s specific conduct: “the aggravations or

otherwise of the offense, the quality and condition of

the parties, and … innumerable other circumstances.”

4 Blackstone, supra, at *371. As a result of that factspecific inquiry, the “quantity of [fines] must

frequently vary, from the aggravations or otherwise of

the offence.” Id. The fine likewise could be no “larger

… than” the offender’s specific “circumstances or

personal estate will bear,” including “saving … to the

traders his merchandize.” Id. at *372. Notably,

Parliament removed any reference to “freemen,”

“merchants,” or “villeins,” ensuring the protection

from excessive fines would restrain the government in

all circumstances.

9

American colonists imported this understanding

of the prohibition against excessive fines into the New

World. See, e.g., Pennsylvania Frame of Government,

Laws Agreed Upon in England, Art. XVIII (1682),

reprinted in 1 The Roots of the Bill of Rights 141

(Bernard Schwartz ed., 1971) (“all fines shall be

moderate, and saving men’s contenements,

merchandize, or wainage”); Charter of Liberties and

Privileges, Oct. 30, 1683, reprinted in 1 America’s

Founding Charters 177, 178 (Jon L. Wakelyn ed.,

2006) (similar). After the Revolution, Virginians

preserved these limitations on government-imposed

penalties in the Virginia Declaration of Rights. See

Va. Decl. of Rts. § 9 (1776) (“nor excessive fines

imposed”); see also Allan Nevins, The American States

During and After the Revolution, 1775–1789, at 146

(1924) (“In the main, [the Virginia Declaration of

Rights] was a restatement of English principles,”

including Magna Carta and the Declaration of Rights

of 1689). The Framers of the Federal Constitution, in

turn, adopted language from the Virginia Declaration

of Rights “almost verbatim” in the Excessive Fines

Clause, “in tune” “with English law.” Timbs, 586 U.S.

at 152.

Importantly, the Framers left the measure of that

guarantee to the courts. For example, Representative

Livermore explained that the meaning of “excessive

fines” “lies with the court to determine.” 1 Annals of

Cong. 782 (1789) (Joseph Gales ed., 1834); see also

Timbs, 586 U.S. at 165 (Thomas, J., concurring in the

judgment) (“when we come to punishments, no

latitude ought to be left, nor dependence put on the

virtue of representatives”) (quoting Patrick Henry,

3 Debates on the Federal Constitution 447 (J. Elliot, 2d

10

ed. 1854)). Otherwise, the prohibition would have

been a parchment barrier, for the government would

“both lev[y] the fine and, at least as a presumptive

matter, determin[e] its constitutionality,” which

“[s]eems a bit like letting the driver set the speed

limit.” Yates v. Pinellas Hematology & Oncology, P.A.,

21 F.4th 1288, 1318 (11th Cir. 2021) (Newsom, J.,

concurring).

This Court’s precedents have consistently

recognized this history and the centrality of the twin

principles of proportionality and salvo contenemento

in applying the Excessive Fines Clause. In BrowningFerris Industries of Vermont, the Court explained that

Magna Carta required “that the amount of the

amercement be proportioned to the wrong” and “that

the amercement not be so large as to deprive him of

his livelihood.” 492 U.S. at 271. Less than a decade

later, this Court reaffirmed the primacy of

proportionality in Bajakajian, reiterating that “[t]he

touchstone of the constitutional inquiry under the

Excessive Fines Clause is the principle of

proportionality: The amount of the forfeiture must

bear some relationship to the gravity of the offense

that it is designed to punish.” 524 U.S. at 334. The

Court elaborated that a fine is unlawful “if it is grossly

disproportional to the gravity of a defendant’s

offense.” Id. (emphasis added). And more recently,

this Court confirmed the Clause’s historical pedigree,

and the continuing vitality of the twin principles, in

Timbs, 586 U.S. at 151 (“Magna Carta required that

economic sanctions be proportioned to the wrong and

not be so large as to deprive an offender of his

livelihood.”) (cleaned up).

11

B. The Decision Below Disregarded Original

Meaning and Precedent

The Alaska Supreme Court’s decision cannot be

reconciled with the Excessive Fines Clause’s “serious

and unbroken historical pedigree,” SEC v. Jarkesy,

603 U.S. 109, 153 (2024) (Gorsuch, J., concurring), or

this Court’s precedents affirming that history.

Petitioner Jouppi was found guilty of violating a

dry-village statute for transporting a six-pack of beer

that officers claimed was visible in his plane. Jouppi

v. State, 566 P.3d 943, 948 (Alaska 2025). In

upholding the forfeiture of his airplane, worth

$95,000, the Alaska Supreme Court did not look to Mr.

Jouppi’s specific conduct but abstracted his offense to

“[a]lcohol abuse in rural Alaska” and imputed to him

the attendant society-wide consequences of that class

of offenses: “increased crime; disorders such as

alcoholism; conditions, such as fetal alcohol spectrum

disorder; and death, imposing substantial costs on

public health and the administration of justice.” Id. at

957.

This makes Mr. Jouppi’s case into a kind of legal

synecdoche, where one small part of the problem

(flying in with an illegal six-pack) is made to stand for

the whole (alcohol smuggling leading to widespread

societal alcohol abuse) and is punished as such. This

cannot be squared with the proportionality

requirements of English law that the Eighth

Amendment codified. The punishment is not “after

the manner of the fault,” i.e., Mr. Jouppi’s own offense,

Magna Carta, supra, ch. 14, and the decision below

failed to weigh “the aggravations or otherwise of the

offense, the quality and condition of the parties, and

12

… innumerable other circumstances,” Blackstone,

supra, at *371.

The Alaska Supreme Court also ignored this

Court’s precedent, which applies a fact-specific

inquiry to proportionality. In Bajakajian, this Court

did not ask how much currency-reporting violations in

toto cost society but focused on the harms the

defendant himself caused. Bajakajian, 524 U.S. at

339. The Court explained that a fine is

unconstitutionally excessive if “it is grossly

disproportional to the gravity of a defendant’s

offense.” Id. at 334–35 (emphasis added). The Court

then looked to the defendant’s specific culpability for

willfully failing to report the approximately $350,000

he was transporting outside the United States “to

repay a lawful debt,” conduct far removed from that of

the offenders the reporting statute targeted: “tax

evaders, drug kingpins, or money launderers.” Id. at

338–39 & n.14 (emphasis added). This Court also

found it “highly relevant” that the defendant’s offense

“was unrelated to any other crime,” and looked to the

defendant’s individualized exposure under the

Sentencing Guidelines. Id. at 337 n.12, 338–39 & n.14.

The Alaska Supreme Court deviated from

Bajakajian’s

defendant-focused

inquiry

and

considered all the societal costs of alcohol abuse. But

stated at that level of generality, any offense can be

said to cause “grave societal harm” sufficient to justify

exorbitant penalties. Jouppi, 566 P.3d at 957. A

proportionality test at that breadth would render the

Excessive Fines Clause a nullity.

The decision below is also inconsistent with salvo

contenemento. The court held that Mr. Jouppi had not

carried his evidentiary burden of proving that “the

13

forfeiture forced him into retirement,” Jouppi, 566

P.3d at 958, but the court’s earlier acknowledgment

that the State seized “an airplane that [Mr. Jouppi]

piloted on behalf of his air taxi company,” id. at 948,

undermines that conclusion. Regardless, in future

cases, this type of forfeiture—where the government

takes the property by which the defendant earns his

living—will implicate salvo contenemento. Such

penalties deprive offenders of the “ability to maintain

a livelihood,” Colgan, supra, at 321, leaving them

beneath the “minimum core level of economic

viability” that the Excessive Fines Clause was meant

to preserve. McLean, supra, at 855–56.

The decision below disregarded history and

precedent. This Court should reverse and, as

explained next, should do so with clear reference to

these underlying principles.

II. THE EXCESSIVE FINES CLAUSE PROTECTS

AMERICAN BUSINESSES FROM RUINOUS CIVIL

PENALTIES

The Excessive Fines Clause’s protection against

targeted economic injury extends well beyond

individual defendants in criminal cases, like Mr.

Jouppi, and so too do the implications of this Court’s

decision. The need for that protection is especially

acute now, as States and municipalities increasingly

seek to impose devastating fines on singled-out

companies, often for generalized claims of public

harms. Their theories frequently multiply statutory

penalties, generating enormous fines disconnected

from any actual harm the defendant allegedly caused.

The point of these litigation campaigns is often

twofold: to line the strained coffers of state and local

governments and to target disfavored businesses to

14

achieve policy changes that have not succeeded at the

ballot box.

These suits “can only be explained as serving in

part to punish.” Austin v. United States, 509 U.S. 602,

610 (1993). The Excessive Fines Clause therefore

constrains the penalties that governments may seek

in them. Properly applied, the Clause limits monetary

sanctions in proportion to the harm a defendant

actually caused and prevents fines from destroying

enterprises, securing for American businesses the

constitutional protection the Eighth Amendment

guarantees them.

A. State and Local Governments Are

Targeting Disfavored Businesses with

Ruinous Civil Penalties to Achieve

National and Global Policy Changes

“[T]he government regularly imposes a wide array

of monetary penalties, both civil and criminal, on

corporations.” Colo. Dep’t of Lab. & Emp’t v. Dami

Hosp., LLC, 442 P.3d 94, 100 (Colo. 2019). States and

local governments use these fines as “a source of

revenue,” sometimes for legitimate purposes and

sometimes “to retaliate against or chill the speech of

political enemies.” Timbs, 586 U.S. at 153–54 (cleaned

up). These penalties can be effective political tools for

the same reason that “[a] right to tax, without limit or

control, is essentially a power to destroy.” McCulloch

v. Maryland, 17 U.S. (4 Wheat.) 316, 391 (1819).

Although these abuses are not new, see Timbs,

586 U.S. at 152; supra, Part I.A, they have accelerated

in recent years at an alarming rate. Specifically,

States and localities have begun to leverage an

assortment of state laws—consumer protection

15

statutes, campaign finance registration laws, and

common law torts—to impose collective liability on a

handful of disfavored companies. Many of these laws

set statutory penalties for each technical violation,

sometimes even applying a separate penalty for each

day that a violation occurs. Cf. Robert H. Jackson,

Att’y Gen. of the U.S., The Federal Prosecutor,

Address at the Second Annual Conference of United

States Attorneys (Apr. 1, 1940) at 4–5 (“With the law

books filled with a great assortment of crimes, a

prosecutor stands a fair chance of finding at least a

technical violation of some act on the part of almost

anyone.”). It is therefore very easy for government

plaintiffs to make the penalty “scale,” multiplying a

modest per-violation figure by thousands of alleged

violations to reach enterprise-destroying statutory

penalties far larger than any harm the government

could prove. A survey of recent cases illustrates the

magnitude of the problem.

For instance, in State v. Grocery Manufacturers

Ass’n, the State of Washington sought an

“unprecedented base penalty of $14,622,820, trebled

to $43,868,460” from a food-industry trade group for

failing to comply with state campaign registration and

disclosure requirements. State v. Grocery Mfrs. Ass’n,

461 P.3d 334, 353 (Wash. 2020). The record indicated,

however, that the State chose to penalize the trade

group not to rigorously enforce campaign finance law,

but to “harass [its] political foe[].” Timbs, 586 U.S. at

152; see Grocery Mfrs. Ass’n, 461 P.3d at 354–55

(Johnson, J., concurring in part and dissenting in

part). “The trial court ultimately imposed a smaller,

but still apparently unprecedented, base penalty of $6

million, trebled to $18 million,” id. at 353, which the

Washington Supreme Court upheld, State v. Grocery

16

Mfrs. Ass’n, 502 P.3d 806 (Wash. 2022). Eventually,

the trade group settled, agreeing to pay $9 million in

exchange for not pursuing review before this Court.

Stip. & Agreed Am. J., State v. Grocery Mfrs. Ass’n,

No. 13-2-02156-8 (Wash. Super. Ct. Thurston Cnty.

Mar. 2, 2022).

The State of Washington recently ran the same

playbook against Meta and secured “a sanction

totaling $35 million—the highest sanction ever in the

history of [Washington] or this country for

noncompliance with reporting laws.” State v. Meta

Platforms, Inc., 590 P.3d 1099, 1125 (Wash. 2026)

(Gordon McCloud, J., dissenting).

Other examples abound. The District of Columbia

is seeking civil penalties from four energy companies

under its consumer protection statute for allegedly

misleading District consumers about the role those

companies’ products play in causing climate change.

Compl., District of Columbia v. Exxon Mobil Corp.,

No. 2020 CA 002892 B (D.C. Super. Ct. June 25,

2020). Rather than plead compensatory damages for

purported harms, the District seeks up to $10,000 per

violation, a demand limited only by the creativity of

the District in how it chooses to count individual

consumer communications. D.C. Code § 28-3909(b).

See also Compl., State v. Am. Petroleum Inst., No. 62CV-20-3837 (Minn. Dist. Ct. Ramsey Cnty. June 24,

2020) (similar, $25,000 per violation); Minn. Stat.

§ 8.31, subdiv. 3; Compl., City of Hoboken v. Exxon

Mobil Corp., No. HUD-L-003179-20 (N.J. Super. Ct.

Sept. 2, 2020) (similar).

Dozens of States also sued Meta under various

consumer protection laws, contending that each

minor’s use of Meta’s platforms was a separate

17

violation—regardless of whether that user was

harmed—a theory that yielded an estimated $1.4

trillion in exposure. See Meta’s Submission Regarding

State AG Penalty and Disgorgement Charts and

Supporting Materials at 19–23, In re Soc. Media

Adolescent Addiction/Pers. Inj. Prods. Liab. Litig.,

No. 4:22-md-03047-YGR (N.D. Cal. July 6, 2026), Dkt.

No. 3237. Faced with such astronomical liability—

approaching its entire market capitalization—Meta

was effectively forced to settle, regardless of the

merits of the claims against it, and for a stillenormous $17 billion. See Press Release, Cal. Dep’t of

Justice, Off. of the Att’y Gen., Attorney General Bonta

Secures Transformative $17 Billion Settlement with

Meta, Proposed Settlement Includes Fundamental

Changes to Instagram and Facebook (Aug. 26, 2026),

https://perma.cc/7RWT-REJU. 3

When statutory penalties are multiplied into

astonishing sums of money that would be

unattainable through compensatory damages, “[i]t

makes sense to scrutinize governmental action more

closely.” Harmelin v. Michigan, 501 U.S. 957, 978 n.9

(1991) (opinion of Scalia, J.). These lawsuits deserve

such scrutiny.

3 This is not to say that there is no legitimate interest these

states have in protecting children from harmful social

media. What the Excessive Fines Clause (and, more

generally, the Due Process Clause) teaches is that such

interests should be protected through ex ante legislation

and ex post litigation tailored to remedying discrete,

concrete harms.

18

B. The Clause’s Protections Extend to Civil

Penalties Against Businesses

The Excessive Fines Clause provides a crucial

check on these abuses, but only if courts faithfully

apply it. This Court has repeatedly held that, in

addition to criminal penalties, “[t]he Eighth

Amendment protects against excessive civil fines.”

Hudson v. United States, 522 U.S. 93, 103 (1997);

Austin, 509 U.S. at 609–11. That makes sense,

because the character of a sanction imposed as

punishment “is not changed by the mode in which it is

inflicted, whether by a civil action or a criminal

prosecution.” United States v. Chouteau, 102 U.S. 603,

611 (1881); cf. Toth v. United States, 143 S. Ct. 552,

553 (2023) (Gorsuch, J., dissenting from denial of

certiorari) (“Really, the notion of ‘nonpunitive

penalties’ is ‘a contradiction in terms.’”).

The penalties that States and localities are

seeking against businesses “cannot fairly be said

solely to serve a remedial purpose, but rather can only

be explained as also serving either retributive or

deterrent purposes.” United States v. Halper, 490 U.S.

435, 448 (1989). This is true for several reasons.

First, in many instances, government plaintiffs

seek treble damages. See, e.g., Compl., State v.

Grocery Mfrs. Ass’n, No. 13-2-02156-8 (Wash. Super.

Ct. Thurston Cnty. Oct. 16, 2013); Compl., State v.

Facebook, Inc., No. 20-2-07774-7 (Wash. Super. Ct.

King Cnty. Apr. 14, 2020). “The very idea of treble

damages reveals an intent to punish past, and to deter

future, unlawful conduct, not to ameliorate the

liability of wrongdoers.” Tex. Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 639 (1981). Relatedly,

state and municipal plaintiffs often “stack” penalties

19

by counting every transaction as a separate violation,

resulting in wildly disproportionate civil fines that

bear no relationship to any specific loss suffered. See,

e.g., supra, Part II.A.

Second, these penalties plainly serve “to retaliate

against or chill the speech of political enemies.”

Timbs, 586 U.S. at 153–54. The suits single out a few

politically disfavored companies and demand that

they answer for diffuse alleged public harms that no

one company could have caused. They also seek to

penalize companies for what is overwhelmingly

speech—advertisements, public statements, and

participation in policy debate—and find ways to

multiply the penalty into astronomical sums. See

supra, Part II.A. And the suits seek to accomplish by

judicial decree what is unattainable by political will in

the democratic process. As counsel for one municipal

climate plaintiff has admitted, “Congress is [not]

likely to take on climate change anytime soon. So [tort

liability] is a rather convoluted way to achieve the

goals of a carbon tax.” The Federalist Soc’y, Can State

Courts Set Global Climate Policy?, YouTube (Oct. 8,

2025), at 33:30, https://youtu.be/1wyxaE4TC-A?si=

Q3WrfVZpKF7AmDcW&t=2007.

Third, these lawsuits seek to dismantle, or at the

very least fundamentally restructure, entire

enterprises—indeed, entire industries—and their

proponents say so openly. The same attorney quoted

above explained that a final, non-appealable

judgment would force the “defendants in all of these

cases [to] immediately declare bankruptcy,” after

which it becomes “the court’s job … to make sure that

the assets are then used for the benefit of the

creditors,” i.e., the state and local governments that

brought the suits. Can State Courts Set Global

20

Climate Policy?, supra, at 34:10, 35:15. An advisor to

plaintiffs’ counsel in those cases has put the point

more bluntly still: if these suits “all go to their logical

extreme, [the oil companies] all go bankrupt…. They

should.” Alex Brown, Some Cities, States Say Big Oil

Should Pay for Climate Damage, Stateline (Apr. 13,

2022) (quoting Pat Parenteau), https://perma.cc/

7VCW-F7F3; see also David Arkush & Donald

Braman, Climate Homicide: Prosecuting Big Oil for

Climate Deaths, 48 Harv. Envtl. L. Rev. 45 (2024)

(urging state and local prosecutors to seize the assets

of energy companies and “then auction the property to

competitor [fossil fuel companies] that agreed to terms

more beneficial to the public”).

These “[e]conomic penalties imposed to deter”

“are fines by any other name. And the Constitution

has something to say about them: They cannot be

excessive.” Tyler v. Hennepin Cnty., 598 U.S. 631,

649–50 (2023) (Gorsuch, J., concurring). 4 As legal

extortion gambits multiply ex ante, doctrinal clarity is

That protection extends to individuals and businesses

alike. Although this Court has left open whether

corporations may invoke the Excessive Fines Clause, lower

courts that have squarely confronted the question

unanimously agree that they may. See Retail Prop. Tr. v.

Nassau Cnty. Dep’t of Assessment, 2026 WL 2263300, at

*3–7 (2d Cir. Aug. 6, 2026); Robson 200, LLC v. City of

Lakeland, 593 F. Supp. 3d 1110, 1119 (M.D. Fla. 2022);

Dami Hosp., 442 P.3d at 99–100; Duling Enters., LLC v.

Dep’t of Lab. & Indus., 573 P.3d 936, 942–43 (Wash. Ct.

App. 2025). That makes sense, because the Excessive Fines

Clause “prohibit[s] punitive confiscation of private

property, which is a type of punishment that may injure a

corporation in the same way it injures an individual.”

Retail Prop. Tr., 2026 WL 2263300, at *3 (cleaned up).

4

21

paramount. Indeed, ex post remedies will not always

be available. Because of the scope of the fines

threatened in some of these cases, it is doubtful that

many companies would even be able to pay an appeal

bond without declaring bankruptcy.

As these lawsuits demonstrate, the risk of grossly

disproportionate, livelihood-destroying fines is

pronounced for businesses, whose resources and

impersonal identities make them ideal deep pockets,

political targets, or scapegoats “to shoulder what

should be public burdens.” Jessica L. Asbridge, Fines,

Forfeitures, and Federalism, 111 Va. L. Rev. 67, 70

(2025). Left unchecked, States and localities will

continue to leverage “coercive prosecutorial tactics

designed to induce” politically unpopular businesses

to settle, effectively insulating excessiveness from

review. Hunter v. United States, 146 S. Ct. 1702, 1715

(2026) (Gorsuch, J., concurring).

C. A Robust Excessive Fines Clause Would

Mitigate This Abuse

A ruling by this Court reaffirming the Excessive

Fines Clause’s twin principles—proportionality and

salvo contenemento—would go a long way toward

mitigating these excesses.

Properly understood, the Excessive Fines Clause’s

proportionality requirement provides an invaluable

check on governments seeking to justify enormous

economic penalties because courts must measure the

penalty against the gravity of the offender’s own

conduct, not the diffuse harms attributed to an entire

industry. Likewise, the principle of salvo

contenemento supplies a meaningful check on

governments seeking windfall civil penalties because,

22

however serious the violation, governments may not

use fines to selectively extort politically disfavored

businesses or drive them into bankruptcy.

None of this prevents States and localities from

pursuing legitimate enforcement of their laws. Where

a government proves that a defendant caused actual

injury, it remains free to recover the full measure of

damages, including punishment for the violation in

proportion to the offender’s own conduct. See Smith v.

Condry, 42 U.S. (1 How.) 28, 35 (1843) (“It is the

actual damage sustained by the party at the time and

place of the injury that is the measure of damages.”).

The Clause forbids only penalties that are untethered

from any harm the defendant caused or large enough

to fundamentally disrupt the enterprise.

Those constitutional guarantees, however,

remain critical and should be enforced. “Ours is a

world filled with more and more civil laws bearing

more and more extravagant punishments.” Sessions v.

Dimaya, 584 U.S. 148, 184 (2018) (Gorsuch, J.,

concurring in part and concurring in the judgment).

The Framers anticipated as much and enshrined a

mechanism in our Constitution to curb those abuses.

Honoring the original meaning of the Excessive Fines

Clause will help mitigate these targeted economic

injuries and provide the vital protections to

businesses that the Constitution secures.

23

CONCLUSION

This Court should reverse the judgment below.

Respectfully submitted,

SEPTEMBER 10, 2026

MICHAEL BUSCHBACHER

Counsel of Record

WALKER FORTENBERRY

BOYDEN GRAY PLLC

800 Connecticut Ave. NW,

Suite 900

Washington, DC 20006

(202) 955-0620

mbuschbacher@boydengray.com