Amicus Curiae Brief — Michael Pung, Personal Representative of the Estate of Timothy Scott Pung, Petitioner v. Isabella County, Michigan

No. 25-95

In the Supreme Court of the United States

MICHAEL PUNG, PERSONAL REPRESENTATIVE OF THE

ESTATE OF TIMOTHY SCOTT PUNG, PETITIONER,

v.

ISABELLA COUNTY, MICHIGAN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES AS AMICUS CURIAE SUPPORTING

PETITIONER

MARIEL A. BROOKINS

CHRISTOPHER J. WALKER

U.S. CHAMBER LITIGATION

CENTER

1615 H Street NW

Washington, DC 20062

(202) 463-5337

JOHN P. ELWOOD

Counsel of Record

ANTHONY J. FRANZE

CONNOR J. MORGAN

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5992

john.elwood@arnoldporter.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Interests of Amicus Curiae ................................................. 1

Summary of Argument ......................................................... 2

Argument ................................................................................ 4

I. The Takings Clause Provides Needed

Protection From Government Tax Sales That

Routinely Sell Property for Grossly Depressed

Amounts .......................................................................... 4

II. The Proliferation of Disproportionate

Forfeitures and Fines Undermines Economic

Growth ........................................................................... 10

A. Massive Civil Fines Are Increasingly

Common and Problematic .................................... 11

B. Excessive Fines, and the Legal Uncertainty

Surrounding Whether They May Be

Imposed, Hinder Beneficial Economic

Activity .................................................................... 17

Conclusion ............................................................................ 21

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Atkins v. Virginia,

536 U.S. 304 (2002) ........................................................ 21

Austin v. United States,

509 U.S. 602 (1993) .................................................. 10, 12

BFP v. Resolution Trust Corp.,

511 U.S. 531 (1994) .......................................................... 7

Browning-Ferris Indus. of Vermont, Inc.

v. Kelco Disposal, Inc.,

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

United States ex rel. Bunk v. Gosselin

World Wide Moving, N.V.,

741 F.3d 390 (4th Cir. 2013) ......................................... 20

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) .......................................................... 5

Culley v. Marshall,

601 U.S. 377 (2024) .................................................. 11, 12

Gunsalus v. County of Ontario, N.Y.,

37 F.4th 859 (2d Cir. 2022) ............................................. 9

Hays v. Hoffman,

325 F.3d 982 (8th Cir. 2003) ......................................... 20

Hudson v. United States,

522 U.S. 93 (1997) .......................................................... 10

Kabakjian v. United States,

92 F. Supp. 2d 435 (E.D. Pa. 2000) ................................ 7

Leonard v. Texas,

580 U.S. 1178 (2017) ...................................................... 11

In Re Lowry,

2021 WL 6112972 (6th Cir. Dec. 27,

2021) .................................................................................. 8

(ii)

iii

Cases—Continued

Page(s)

Martinez v. City of Lantana, Fla.,

410 So.3d 15 (Fla. App. 2025) ....................................... 14

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) .......................................................... 3

Morrison v. Nat’l Australia Bank Ltd.,

561 U.S. 247 (2010) .......................................................... 2

Myrie v. Comm'r, N.J. Dep't of Corr.,

267 F.3d 251 (3d Cir. 2001) ........................................... 20

Pennymac Loan Servs. v. Roosevelt

Assocs., RIGP,

311 A.3d 1270 (R.I. 2024) ............................................ 3, 9

Pimentel v. City of Los Angeles, Cal.,

974 F.3d 917 (9th Cir. 2020) ......................................... 20

Rafaeli, LLC v. Oakland County, Mich.,

952 N.W.2d 434 (Mich. 2020)........................................ 10

Sessions v. Dimaya,

584 U.S. 148 (2018) .................................................... 4, 11

Sheetz v. County of El Dorado, Cal.,

601 U.S. 267 (2024) .......................................................... 4

In re Sherman,

223 B.R. 555 (B.A.P. 10th Cir. 1998) ............................. 9

In re Smith,

811 F.3d 228 (7th Cir. 2016) ........................................... 8

Solem v. Helm,

463 U.S. 277 (1983) ........................................................ 20

Timbs v. Indiana,

586 U.S. 146 (2019) .............................................. 3, 11, 12

Toth v. United States,

143 S. Ct. 552 (2023) ................................................ 13, 20

iv

Cases—Continued

Page(s)

Towers v. City of Chicago, Ill.,

173 F.3d 619 (7th Cir. 1999) ......................................... 20

In re Tracht Gut, LLC,

836 F.3d 1146 (9th Cir. 2016) ......................................... 9

Tyler v. Hennepin County, Minn.,

598 U.S. 631 (2023) ................................................ 2, 5, 10

United States v. Bajakajian,

524 U.S. 321 (1998) ........................................................ 20

United States v. Toth,

33 F.4th 1 (1st Cir. 2022) .............................................. 20

WCI, Inc. v. Ohio Dep't of Pub. Safety,

774 F. App’x 959 (6th Cir. 2019) .................................. 20

Weems v. United States,

217 U.S. 349 (1910) ........................................................ 20

Yates v. Pinellas Hematology & Oncology,

P.A., 21 F.4th 1288 (11th Cir. 2021) ............................ 20

Constitutional Provisions

U.S. Const. amend. V ................................... 1, 2, 3, 4, 5, 9, 10

U.S. Const. amend. VIII ....................... 1, 3, 4, 12, 13, 18-21

Statutes & Regulations

12 U.S.C. § 5565(c)............................................................... 12

26 U.S.C. § 5000D(a) ........................................................... 12

26 U.S.C. § 6335 ..................................................................... 6

12 C.F.R. § 1083.1 ................................................................ 12

40 C.F.R. § 19.4 .................................................................... 16

Cal. Civ. Code § 1798.155 (2025) ........................................ 14

Fla. Stat. § 501.171(9)(b)(1) (2025) .................................... 14

Mich. Comp. Laws § 211.78m(16)(c) .................................... 6

v

Statutes & Regulations—Continued

Page(s)

Michigan General Property Tax Act, Mich.

Comp. Laws §§ 211.1 et seq. .......................................... 6

Tex. Bus. & Com. Code Ann. § 541.155(a)

(2023) ............................................................................... 14

Va. Code Ann. § 59.1-584 (2022) ........................................ 14

Other Authorities

Jessica L. Asbridge, Fines, Forfeitures,

and Federalism, 111 Va. L. Rev. 67

(2025) ............................................................................... 14

Laura B. Bartell, Tax Foreclosure as

Fraudulent Transfers - Are Auctions

Really Necessary?, 93 Am. Bankr. L.J.

681 (2019) .......................................................................... 7

Michael K. Block, Optimal Penalties,

Criminal Law and the Control of

Corporate Behavior, 71 B.U. L. Rev.

395 (1991) ........................................................................ 18

Neil Bradley, How Excessive Regulation

Hurts the Economy, U.S. Chamber of

Com. (Jan. 16, 2025) ...................................................... 18

Beyond the Rules: The Human Cost of

Regulatory Enforcement, Regulatory

Compliance News (Sept. 4, 2024) ................................ 18

Br. for Chamber of Com. of the United

States of America as Amicus Curiae,

Sackett v. EPA, 598 U.S. 651 (2023)

(No. 21-454) .................................................................... 16

Br. of the United States as Amicus Curiae,

Tyler, 598 U.S. 631 (No. 22-166) .................................... 3

vi

Other Authorities—Continued

Page(s)

Dick Carpenter et al., The Price of

Taxation by Citation, Inst. for Just.

(Oct. 2019) ....................................................................... 15

Beth A. Colgan, Reviving the Excessive

Fines Clause, 102 Cal. L. Rev. 277

(2014) ................................................................................. 4

Cong. Rsch. Serv., R47202, Tax Provisions

in the Inflation Reduction Act of 2022

(2022) ............................................................................... 12

Consent Order, In re Equifax Inc., CFPB

No. 2025-CFPB-0002 (Jan. 17, 2025) ......................... 13

James Cooper & Joanna Shepherd, State

UDAP Laws: An Economic &

Empirical Analysis, 81 Antitrust L. J.

947 (2017) ........................................................................ 18

Defendants' Mot. to Dismiss, Dayton Area

Chamber of Com. v. Becerra, No. 3:23cv-156 (S.D. Ohio filed Dec. 15, 2023) ......................... 12

Tony Francois, Modernizing Water

Regulation, in Competitive Enter.

Inst., Modernizing the EPA (Daren

Bakst et al. eds., 2025) .................................................. 16

Alisa Hauser & Tanveer Ali, As Sign

Violations Spike, “Erratically

Enforced” Law Questioned,

DNAInfo.com (Sept. 11, 2017),

https://bit.ly/4rviqJM .................................................... 15

Alisa Hauser, City Slaps Fines on

Businesses for Putting Signs on

Windows Without Permits (July 28,

2017), https://bit.ly/4at2NfQ ........................................ 15

vii

Other Authorities—Continued

Page(s)

Harry M. Hipler, Conflicting Parameters

of Code Enforcement Fines and Liens

Pursuant to Chapter 162 of the Florida

Statutes, Timbs, and the Eighth

Amendment: How Much Is Too

Much?, 52 Stetson L. Rev. 669 (2023) ........................ 14

April Leachman, When It Come to Sign

Violations in Chicago, It’s All About

the Dollar Signs (Sept. 11, 2017),

https://bit.ly/4ixb7xt ...................................................... 15

Lawrence Ponoroff, The Curious Case of

Tyler v. Hennepin County, 43 Va. Tax

Rev. 131 (2023) ............................................................. 5, 7

John Rao, The Other Foreclosure Crisis:

Property Tax Lien Sales, Nat'l

Consumer L. Ctr. (Jul. 2012) ...................................... 6, 7

L. S. Sealy & R. J. A. Hooley, Commercial

Law: Text, Cases and Materials (5th

ed. 2003) .......................................................................... 19

John Terzaken & Pieter Huizing, How

Much Is Too Much? A Call for Global

Principles to Guide the Punishment of

International Cartels (Spring 2013) ..................... 17, 18

U.S. Chamber Inst. for Legal Reform,

Constitutional Constraints: Provisions

Limiting Excessive Government Fines,

(Oct. 2015) ....................................................................... 16

U.S. Chamber Inst. for Legal Reform,

Enforcement Gone Amok: The Many

Faces of Over-Enforcement in the

United States (May 2016) ....................................... 16, 17

viii

Other Authorities—Continued

Page(s)

U.S. Chamber Inst. for Legal Reform,

French Fries to Fossil Fuels: The

Misplaced Reliance on Unfair and

Deceptive Practices Laws to Pursue

Policy Agendas (Aug. 2023) ............................. 17, 18, 19

U.S. Chamber Inst. for Legal Reform,

Unfair Practices or Unfair

Enforcement? (Oct. 2016) ........................... 15, 16, 17, 18

INTERESTS OF AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. It represents 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of every

size, in every industry sector, and from every region of the

country. An important function of the Chamber is to

represent the interests of its members in matters before

Congress, the Executive Branch, and the courts. To that

end, the Chamber regularly files amicus curiae briefs in

cases, like this one, that raise issues of concern to the

nation’s business community.

The Chamber and its members have a substantial

interest in the issues presented in this case. Respondent

advocates an interpretation of the Takings Clause that

would all but invite governments to implement tax-sale

schemes that would completely undermine the Fifth

Amendment’s protections and deprive citizens of just

compensation. Beyond that, respondent urges the Court

to adopt a radical interpretation of the Excessive Fines

Clause that would grant governments carte blanche to

impose grossly disproportionate civil penalties and fines

against U.S. businesses—in the tax-sale context and

numerous others—without the necessary check of the

Eighth Amendment.

Pursuant to Supreme Court Rule 37.6, amicus curiae states that

no counsel for any party authored this brief in whole or in part and

no entity or person, aside from amicus curiae, its members, or its

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

1

(1)

2

SUMMARY OF ARGUMENT

Petitioner owed $2,242 in taxes, and a local

government seized his home and sold it for $76,008—less

than 40% of its $194,400 value—to satisfy the debt. Put

another way, the government assessed a penalty of nearly

$120,000—more than 50 times its alleged financial harm.

Under the Fifth and Eighth Amendments, that was an

unlawful Taking and an Excessive Fine.

I. Petitioner demonstrates that history and precedent

require that when the government takes a citizen’s

property, “just compensation” means placing the owner in

the same position they would have occupied if the property

had not been taken. Amicus submits this brief to

underscore that the protection is particularly needed in the

context of tax sales. Unlike the private mortgage

foreclosure process, State and local tax-sale laws typically

lack adequate protections for property owners and are

designed merely to recover the amount of taxes owed,

unmoored from the value of the property. The government

is incentivized to sell quickly and on the cheap, frequently

resulting in catastrophic losses for property owners: their

property, or a lien on the property, often is sold for only a

few thousand dollars (the amount of the tax debt)

regardless of the fair market value.

In Tyler v. Hennepin County, Minnesota, 598 U.S.

631, 638 (2023), this Court held that, while the government

may seize and sell property to satisfy past due taxes along

with the costs of collecting them, any surplus “remaining

value is property under the Takings Clause, protected from

uncompensated appropriation by the State.” But the

Takings Clause “would be a craven watchdog indeed if it

retreated to its kennel,” Morrison v. Nat’l Australia Bank

Ltd., 561 U.S. 247, 266 (2010), whenever a State or local

government could simply avoid any surplus by setting the

sales price or minimum bid at only a pittance. Yet under

many tax-sale laws, the government can do just that. See

3

Pennymac Loan Servs. v. Roosevelt Assocs., RIGP, 311

A.3d 1270, 1277 (R.I. 2024) (Takings Clause not violated

where town sold property worth $300,000 “exclusively for

unpaid taxes and fees in the amount of $1,213.54” because

town “did not retain any excess value.”). The Fifth

Amendment demands more.

II. The taking here also violated the Eighth

Amendment. The Excessive Fines Clause “traces its

venerable lineage” to Magna Carta and the English Bill of

Rights, and this Court has held that “[p]rotection against

excessive punitive economic sanctions” is “both

‘fundamental to our scheme of ordered liberty’ and

‘deeply rooted in this Nation’s history and tradition.’ ”

Timbs v. Indiana, 586 U.S. 146, 151, 154 (2019) (quoting

McDonald v. City of Chicago, Ill., 561 U.S. 742, 767

(2010)). Nevertheless, respondent and the United States

(in its amicus brief in Tyler) have taken the position that

the Excessive Fines Clause presents no limitation

whatsoever on grossly disproportionate governmental

fines or penalties unless they are a “sanction for criminal

conduct after an adjudication of guilt in a criminal

proceeding” or imposed in a civil action “brought after the

property owner had already been convicted of a crime”—

i.e., that the constitutional safeguard has no applicability

where the government imposes fines or penalties in civil

actions unconnected to a criminal proceeding. Br. of the

United States as Amicus Curiae at 26, Tyler, 598 U.S. 631

(No. 22-166); see Br. in Opp. 10-11.

Petitioner demonstrates why that view clashes with

this Court’s jurisprudence and that the Excessive Fines

Clause applies fully to entirely civil monetary exactions,

such as where real property forfeited to satisfy a tax debt

is sold for a fraction of its value. Amicus submits this brief

to highlight how the protection of the Excessive Fines

Clause is needed well beyond the tax-sale context of this

case.

4

Recent years have seen “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). From

federal laws imposing 1,900% civil fines for

pharmaceutical manufacturers’ lawful noncompliance

with an agency’s pricing wishes, to crippling “per

incident” penalties for unintentional state consumer

protection law infractions, to staggering local government

penalties for minor building code transgressions,

protection from the pursuit of overly aggressive civil fines

and penalties is needed more than ever.

The proliferation of disproportionate fines and

forfeitures is not only contrary to the Eighth Amendment,

but also undermines economic growth. “At a time when

the use of economic sanctions has such dire consequences

and is so widespread, the Eighth Amendment’s Excessive

Fines Clause is of critical importance.” Beth A. Colgan,

Reviving the Excessive Fines Clause, 102 Cal. L. Rev.

277, 295 (2014). The Court should reiterate that the

Excessive Fines Clause applies to civil penalties

regardless of whether they are connected to a criminal

proceeding, and that a fine is unconstitutional when it is

disproportionate to the harm caused by the underlying

civil violation.

ARGUMENT

I.

THE TAKINGS CLAUSE PROVIDES NEEDED

PROTECTION FROM GOVERNMENT TAX SALES

THAT ROUTINELY SELL PROPERTY FOR GROSSLY

DEPRESSED AMOUNTS

The Takings Clause states that “private property”

shall not “be taken for public use, without just

compensation.” U.S. Const. amend. V. “[T]he Fourteenth

Amendment * * * incorporates the Takings Clause against

the States.” Sheetz v. County of El Dorado, Cal., 601 U.S.

267, 276 (2024).

5

This Court in Tyler held that, while the government

may seize and sell property to satisfy past due taxes along

with the costs of collecting them, any surplus “remaining

value is property under the Takings Clause, protected from

uncompensated appropriation by the State.” Tyler, 598

U.S. at 638.

But that protection is illusory if the government can

simply set the price of the property so low at auction or

other tax sale that there will never be any surplus—

destroying an owner’s home equity in the process. As the

Court observed in Tyler, “property rights cannot be so

easily manipulated.” Id. at 645 (quoting Cedar Point

Nursery v. Hassid, 594 U.S. 139 , 155 (2021)). Yet they are

every day in government tax sales throughout the country.

A. All states have laws permitting governments to sell

property to satisfy tax debts of the owners. While the laws

vary significantly state-to-state, generally, “a delinquent

tax foreclosure entails one of two methods that a state or

local government authority may employ to collect taxes

due on a property: tax lien sales and tax deed sales.”

Lawrence Ponoroff, The Curious Case of Tyler v. Hennepin

County, 43 Va. Tax Rev. 131, 141 (2023).

“In a tax lien foreclosure scenario, typically, a

‘certificate’ or ‘lien certificate’ representing the underlying

lien is auctioned off for the taxes due plus a specified rate

of interest that accrues in the event of a subsequent

redemption.” Id. If the property owner does not pay off the

certificate within the designated period of time, “then the

certificate holder has the right to foreclose on the

property.” Id. at 142.

By contrast, “in a tax deed sale, the property itself,

rather than the lien right, is sold. The sale occurs through

an auction with a minimum bid of the amount of back taxes

owed, plus interest, as well as the costs associated with

selling the property.” Id.

6

The structure of these types of laws “makes it far more

likely that a homeowner will suffer a devastating loss of

home equity as compared with other auction sales.” John

Rao, The Other Foreclosure Crisis: Property Tax Lien

Sales at 8, Nat’l Consumer L. Ctr. (Jul. 2012). “Unlike a

home mortgage foreclosure where the owner typically

owes the lender an amount close to the value of the

property, a tax lien sale may be started over nonpayment

of a tax bill of only a few hundred or thousand dollars.” Id.

at 8-9. “In many states the property will be sold simply for

the amount of the taxes owed, based on the bidding

procedures used at tax-sale auctions. Thus, a $200,000

home may be sold at a tax lien sale for $1,200.” Id. at 9.

Michigan’s tax-sale scheme is a paradigmatic

example of the problem. Michigan’s General Property Tax

Act, Mich. Comp. Laws §§ 211.1 et seq., permits sales at a

“minimum bid” that need only “include all delinquent

taxes, interest, penalties, and fees on the property,” rather

than the property’s fair value. Id. § 211.78m(16)(c). In

Michigan, as in many states, “the minimum bid (the taxes

owed) is effectively also the maximum bid,” even if the

property’s actual value is a hundred times higher. Rao,

supra, at 38. This occurs because “[t]ax sale laws are

generally designed to provide recovery of only the taxes

owed to the local taxing authority.” Id. The problem is

compounded after Tyler because governments have no

incentive to recover any value beyond the tax debt since

they are now required to return any surplus to the owner.

The federal government’s tax-sale laws, see, e.g., 26

U.S.C. § 6335, likewise allow for minimum bids that fall well

under the property’s fair value. “[Section] 6335(e) requires

only that a minimum price be set and that no lower bid be

accepted. It does not require the IRS to determine fair

market value or to base the minimum bid price on such

value * * *. [T]he minimum bid is capped at the sum of

taxes owed, interest, penalties and expenses of sale.”

7

Kabakjian v. United States, 92 F. Supp. 2d 435, 440 (E.D.

Pa. 2000).2

The end result is that property is often foreclosed for

the amount of the tax debt, which bears no relation to the

value of the home, destroying an owner’s home equity. And

this is just one of the many documented shortcomings of

tax-sale laws. E.g., Rao, supra, at 9-19.

B. Courts have thus repeatedly recognized that taxsale procedures provide inadequate protection to owners

and result in sales well below fair value. Under the

Bankruptcy Code, for instance, a trustee can void a

transfer of property made through a tax sale if the debtor

received less than “a reasonably equivalent value” from the

sale. Ponoroff, supra, at 143. This Court has held that, with

respect to private mortgage foreclosures, “a fair and

proper price, or a ‘reasonably equivalent value,’ for

foreclosed property, is the price in fact received at the

foreclosure sale, so long as all the requirements of the

State’s foreclosure law have been complied with.” BFP v.

Resolution Trust Corp., 511 U.S. 531, 545 (1994). But the

Court also explicitly recognized that “other foreclosures

and forced sales (to satisfy tax liens, for example) may be

different.” Id. at 537 n.3.

Lower courts have found that tax-sale laws are indeed

different, and often do not result in a fair and proper price

(the “reasonably equivalent value”). See Ponoroff, supra,

at 153-56; Laura B. Bartell, Tax Foreclosure as

Fraudulent Transfers - Are Auctions Really Necessary?,

93 Am. Bankr. L.J. 681, 688 (2019). Assessing Michigan’s

tax foreclosure process, for example, the Sixth Circuit

found that Michigan’s procedures, which allowed the sale

of a property for only the amount of the tax debt

Though, as petitioner observes, the federal government’s taxsale procedures would not have permitted the sale at issue here. See

Pet. Br. 39.

2

8

notwithstanding the vastly higher fair market value, was

not fair value and remanded for the court to consider

whether the sale should be set aside. In Re Lowry, 2021

WL 6112972, at *4 (6th Cir. Dec. 27, 2021). The court

explained that “[t]he tax foreclosure process here was * * *

significantly different from the mortgage foreclosure

system in BFP. The debtor’s home in BFP was sold for

$433,000 in a foreclosure sale that provided sufficient

procedural protections under state law. In contrast, the

Michigan foreclosure law here permitted the local

government to purchase the property without a public

auction, for the ‘minimum bid.’ ” Id. (internal citation

omitted). The result was that the city was able to buy the

debtor’s “property for $14,496 (the amount of the taxes

due), an amount that had no apparent relation to the value

of the property and was only about ten percent of the

alleged fair-market value.” Id.3

The Sixth Circuit acknowledged that “[i]t is true that

the foreclosure sale in BFP did not necessarily result in fair

market value, but it was at least somewhat correlated to

the value of the property in the non-purely-market

conditions of a statutory foreclosure sale. This simply is not

the case when a tax foreclosure sale focuses on the value of

the taxes owed rather than on the value of the property.”

Id.; accord In re Smith, 811 F.3d 228, 238 (7th Cir. 2016)

(“Illinois’s tax sale method is not designed to produce bids

that could fairly be called ‘reasonably equivalent value.’

* * * [I]n an Illinois tax sale, there is no correlation

between the sale price and the value of the property.”);

Thus, the Sixth Circuit’s decision below results in the absurd

situation where a person whose property is sold for well under fair

market value has no recourse under the Takings Clause, but if the

owner were to file for bankruptcy, the sale could be set aside as not

reflecting “reasonably equivalent value.” In other words, the owner of

the property has no ability to set aside the sale for themselves, but once

bankrupt the sale can be set aside for the benefit of creditors.

3

9

Gunsalus v. County of Ontario, N.Y., 37 F.4th 859, 865

(2d Cir. 2022) (“[T]he strict foreclosure procedures under

[New York’s tax-sale law] offer far fewer debtor

protections than the mortgage foreclosure procedures at

issue in BFP.”); In re Sherman, 223 B.R. 555, 559 (B.A.P.

10th Cir. 1998) (citing cases) (setting aside tax sale

because “[t]he tax sale was conducted in accordance with

Wyoming law, which the parties agree mandated that the

property be sold to a person selected in a random lottery

for an amount of the outstanding taxes; in this case less

than $500”); but cf. In re Tracht Gut, LLC, 836 F.3d 1146,

1149 (9th Cir. 2016) (presuming price sold was reasonably

equivalent value because “California tax sales have the

same procedural safeguards as the California mortgage

foreclosure sale at issue in BFP.”).

C. Without Takings Clause protections, similar

inequities will occur under tax-sale procedures that, by

design, all but ensure that property will be sold for a

fraction of its value. And post-Tyler, the problem is even

worse: governments now have no incentive to collect

anything more than the amount of taxes owed since they

can no longer keep the surplus. This is not hyperbole. The

Rhode Island Supreme Court recently concluded that the

Takings Clause offered no protection to an owner whose

property had a market value of $300,000 and was sold for

$1,213. The court reasoned that Tyler merely held that the

government “could not retain the excess value in the

home,” and the town “[s]old the subject property

exclusively for unpaid taxes and fees in the amount of

$1,213.54 and did not retain any excess value.” Pennymac

Loan Servs. v. Roosevelt Assocs. RIGP, 311 A.3d 1270, 1277

(R.I. 2024).

If the decision below is upheld, States and local

governments will have perverse incentives to adopt

procedures and laws where the government can set the

minimum bid or sales price just high enough to recover

10

taxes owed—ensuring that there will be no surplus to

return to the owner. Rafaeli, LLC v. Oakland County,

Mich., 952 N.W.2d 434, 486 (Mich. 2020) (Viviano, J.,

concurring) (“[T]he foreclosing unit would have little

incentive to conduct a sale that earns anything more than

the delinquent tax sum.”).

The Takings Clause should provide a uniform,

nationwide check on tax-sale schemes that regularly

deprive property owners of just compensation.

II.

THE PROLIFERATION OF DISPROPORTIONATE

FORFEITURES

AND

FINES

UNDERMINES

ECONOMIC GROWTH

“The purpose of the Eighth Amendment * * * was to

limit the government’s power to punish,” with the

Excessive Fines Clause forming an integral part of the

Amendment’s framework by “limit[ing] the government’s

power to extract payments, whether in cash or in kind, ‘as

punishment for some offense.’ ” Austin v. United States,

509 U.S. 602, 609-10 (1993) (quoting Browning-Ferris

Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S.

257, 265 (1989)).

This Court has thus not limited the protection to fines

and penalties in criminal proceedings. Rather, “[t]he

Eighth Amendment protects against excessive civil fines

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

“Some provisions of the Bill of Rights are expressly

limited to criminal cases * * * . The text of the Eighth

Amendment includes no such limitation.” Austin, 509 U.S.

607-08; Tyler, 598 U.S. at 648 (Gorsuch, J., concurring)

(“[T]he Excessive Fines Clause applies to any statutory

scheme that ‘serv[es] in part to punish.’ ” (quoting Austin,

509 U.S. at 610)).

Nevertheless, respondent (and the United States in

Tyler) have taken the view that the Clause provides

absolutely no protection in the multitude of contexts

11

where the government seeks grossly disproportionate

civil penalties. That is contrary to fundamental

constitutional principles of proportionality, and would

defeat the broader goals behind the Eighth Amendment.

A.

Massive Civil Fines Are Increasingly Common and

Problematic

Tax sales like the one that forfeited petitioner’s home

have devastating consequences for individuals, many of

whom are elderly, poor, or otherwise not well-positioned

“to defend their interests in forfeiture proceedings.”

Leonard v. Texas, 580 U.S. 1178 (2017) (statement of

Thomas, J., respecting denial of certiorari). They also

impact American businesses, including many small

businesses. In Michigan alone last year, well over 100

commercial properties were sold by the state in tax sales.4

But tax sales that impose grossly disproportionate

punishments for non-criminal—and only minimally

culpable, or nonculpable—conduct are just the tip of the

iceberg.

Government actors “increasingly depend heavily on

fines and fees as a source of general revenue.” Timbs, 586

U.S. at 154 (quotation source omitted). This incentivizes

“more and more civil laws bearing more and more

extravagant punishments.” Dimaya, 584 U.S. at 184

(Gorsuch, J., concurring in part and concurring in the

judgment).

1. The most prominent example is the “booming

business” of civil forfeiture. Culley v. Marshall, 601 U.S.

377, 395 (2024) (Gorsuch, J., concurring). “[B]ecause the

law enforcement entity responsible for seizing the

property often keeps it, these entities have strong

incentives to pursue forfeiture.” Leonard, 580 U.S. at 1178

(statement of Thomas, J., respecting denial of certiorari).

4

https://bit.ly/4pnHvoM.

12

“These cash incentives * * * influence which laws police

enforce, how they enforce them, and who they enforce

them against.” Culley, 601 U.S. at 405 (Sotomayor, J.,

dissenting); accord id. at 396 (Gorsuch, J., concurring)

(“[It] seems that, when local law enforcement budgets

tighten, forfeiture activity often increases.”). Though

these forfeitures are civil proceedings, this Court has not

hesitated to apply the Eighth Amendment as a protection

against them. See Austin, 509 U.S. at 622; Timbs, 586 U.S.

at 156. Similar protection under the Eighth Amendment

is warranted for other non-criminal penalty schemes.

2. Government actors often interpret federal laws

expansively to seek penalties from U.S. businesses that

bear no reasonable relationship to the alleged wrongdoing

or harm. For instance, the federal government has used

the Inflation Reduction Act to seek an “excise tax” of up

to 1,900% of a medication’s revenues if a pharmaceutical

company declines to participate in a mandatory drugpricing program. See 26 U.S.C. § 5000D(a); see also Cong.

Rsch. Serv., R47202, Tax Provisions in the Inflation

Reduction Act of 2022 (H.R. 5376) (2022). Under this

punitive regime, a company that sells 500,000 doses of a

$10 medication would earn $5 million in gross revenue—

but it would face liability of $95 million. Yet a criminalonly view of the Excessive Fines Clause would provide no

protection from that excessive sanction for entirely nonculpable conduct, “triggered by the lawful choices of the

[manufacturer]” in declining to sell the drug at the

government’s preferred price. Defendants’ Mot. to

Dismiss at 64, Dayton Area Chamber of Com. v. Becerra,

No. 3:23-cv-156 (S.D. Ohio filed Dec. 15, 2023).

Another example: the Consumer Financial

Protection Act imposes penalties up to $1,000,000 per day

for any ongoing violation of the federal consumer financial

laws, depending on the responsible party’s level of

knowledge. See 12 U.S.C. § 5565(c); 12 C.F.R. § 1083.1.

13

The federal government has used the law to seek drastic

financial liability even for minimally culpable actions, such

as utilizing a business practice that fails to achieve

“maximum possible accuracy of consumer information * *

*.” See Consent Order, In re Equifax Inc., CFPB No.

2025-CFPB-0002 (Jan. 17, 2025) (explaining company’s

$15-million settlement with the Consumer Financial

Protection Bureau). Yet again, the criminal-only view

would provide no protections whatsoever for such

excessive punishment.

Myriad other federal laws—the False Claims Act, the

Federal Trade Commission Act, the Clean Air Act, the

Occupational Safety and Health Act, the Bank Secrecy

Act, and the Health Insurance Portability and

Accountability Act, to list just a few—are used by

government actors to seek devastating liability for only

minor offenses. For example, the Securities and

Exchange Commission recently fined 26 businesses more

than $390 million for what the agency described as

“recordkeeping failures.”5

And it’s not just companies that face exorbitant fines.

The Internal Revenue Service recently imposed a civil

penalty of $2.1 million and $1 million in late fees and

interest because an 80-year-old woman had failed to

report her foreign bank account—a penalty of more than

half the account’s balance. The court of appeals held that

the Constitution’s protection against excessive fines did

not apply because the IRS’s assessment against her was

“not tied to any criminal sanction” and served in part a

“remedial” purpose, an outcome “difficult to reconcile

with [the Court’s] precedents.” Toth v. United States, 143

S. Ct. 552 (2023) (Gorsuch, J., dissenting from the denial

of certiorari).

5

https://bit.ly/48Cb4vI.

14

3. Government actors also use State laws to seek

disproportionate financial penalties for minimally

culpable conduct. Consider several states’ consumer dataprivacy laws. Under the California Consumer Privacy

Act, California can fine businesses up to $2,500 per

incident for “unintentional errors,” and provides “[n]o

leniency for first-time offenders.”6 See Cal. Civ. Code §

1798.155 (2025). Virginia can fine businesses up to $7,500

per violation. See Va. Code Ann. § 59.1-584 (2022). Texas

likewise can fine businesses up to $7,500 per violation.

See Tex. Bus. & Com. Code Ann. § 541.155(a) (2023). And

Florida can fine businesses up to $1,000 per day for the

first 30 days—and then up to $50,000 per day. See Fla.

Stat. § 501.171(9)(b)(1) (2025).

4. Local governments also are seeking excessive civil

penalties under zoning and building code ordinances for

low-level violations. For example, a Florida city recently

fined a homeowner more than $160,000 for various minor

code infractions, such as a downed fence and cracked

driveway. See Martinez v. City of Lantana, Fla., 410

So.3d 15, 19 (Fla. App. 2025). Such municipal fines can

grow to gargantuan sums in part because they are often

assessed on a per-day basis. See, e.g., Jessica L. Asbridge,

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

127 (2025) (“Although the daily fine ($500) may not seem

unreasonable, considering only the daily amount ignores

the magnitude of the actual fine, which reflects the total

for the number of days involved. That latter amount—

here, $28,500—was the fine assessed and the amount of

the lien that attached to the property.”); see also Harry

M. Hipler, Conflicting Parameters of Code Enforcement

Fines and Liens Pursuant to Chapter 162 of the Florida

Statutes, Timbs, and the Eighth Amendment: How Much

6

https://bit.ly/3KuxNli.

15

Is Too Much?, 52 Stetson L. Rev. 669, 695-96 (2023)

(discussing problem of per-diem fines for code violations).

Chicago’s regulations authorize fines ranging from

$350 to $15,000 per sign per day for small businesses that

display unpermitted window signs—everyday notices

such as “ATM Inside” or “Breakfast, Lunch & Dinner” in

the window of a convenience store or restaurant. April

Leachman, When It Come to Sign Violations in Chicago,

It’s All About the Dollar Signs, ChicagoNow.com (Sept.

11, 2017), https://bit.ly/4ixb7xt. One dry cleaner was

threatened with a $1,000 daily fine for a window sign that

advertised wedding dress cleaning and leather repair.

Alisa Hauser, City Slaps Fines on Businesses for Putting

Signs on Windows Without Permits, DNAInfo.com (July

28, 2017), https://bit.ly/4at2NfQ. Although that business

removed its sign, others did not—and as a result owed

substantial amounts in penalties, interest, and

administrative and collection fees. Alisa Hauser &

Tanveer Ali, As Sign Violations Spike, “Erratically

Enforced” Law Questioned, DNAInfo.com (Sept. 11,

2017), https://bit.ly/4rviqJM. Residents and community

leaders questioned why the city was aggressively

enforcing storefront-sign rules despite Chicago’s many

other pressing challenges. See Leachman, supra; see also

Dick Carpenter et al., The Price of Taxation by Citation

at 20-22, Inst. for Just. (Oct. 2019) (discussing problems

and examples of abuses when local governments view

citations as revenue to solve budgetary issues).

5. Without any constitutional check, governments

exploit “per incident” and “per day” provisions to raise the

stakes and pressure companies to settle even baseless

claims. For instance, under state consumer protection

laws, States tend to “seek ‘per violation’ civil penalties

based on every prescription filled, letter sent, product

sold, or advertisement published or aired for the longest

period allowed under the statute of limitations.” U.S.

16

Chamber Inst. for Legal Reform, Unfair Practices or

Unfair Enforcement? at 24 (Oct. 2016). Because

government actors pursue “violations” in such an

aggressive and granular way, “businesses are subject to

extraordinary civil penalties for a single action even when

the conduct did not mislead anyone or cause an economic

loss.” Id.

Similar problems arise when government actors seek

fines on a per-day basis. Under the federal Clean Water

Act, for instance, violators of certain requirements can be

subject to a maximum fine of $68,445 “per day for each

violation.” Tony Francois, Modernizing Water

Regulation at 148, in Competitive Enter. Inst.,

Modernizing the EPA (Daren Bakst et al. eds., 2025)

(emphasis added); see also 40 C.F.R. § 19.4. Because the

Clean Water Act compounds the aggregate fine by both

the number of violations and the number of days the

violations are ongoing, fines imposed under the law can

quickly become exorbitant. See Br. for Chamber of Com.

of the United States of America as Amicus Curiae at 19,

Sackett v. EPA, 598 U.S. 651 (2023) (No. 21-454) (“EPA

has wide discretion in the penalties it can seek in

enforcement actions, and those penalties can be

crippling.”).

Moreover, individuals and businesses are repeatedly

subjected to multiple fines—by different government

actors—for the same alleged conduct. See U.S. Chamber

Inst. for Legal Reform, Constitutional Constraints:

Provisions Limiting Excessive Government Fines at 1

(Oct. 2015). When Congress tasks a federal agency with

“tightly regulating the conduct at issue,” “it makes little

sense for states to duplicate those efforts.” U.S. Chamber

Inst. for Legal Reform, Enforcement Gone Amok: The

Many Faces of Over-Enforcement in the United States at

11 (May 2016). This duplicative enforcement would make

little sense because, “[a]fter all, it would be virtually

17

impossible for a business to simultaneously comply with

the federal regulatory scheme and disparate

requirements imposed by 50 state mini-[agencies].” Id.

Litigation against the pharmaceutical industry

provides another example of this “pile-on effect”: To

resolve allegations that the company improperly

marketed a drug, one company entered a multi-state

settlement agreement for $62 million, settled with nine

individual states for a total of $196 million, settled with the

federal government for $1.415 billion, and settled

approximately 26,000 individual products liability suits for

$1.2 billion—in addition to litigating a class action and

several shareholder derivative suits. See U.S. Chamber

Inst. for Legal Reform, Unfair Practices or Unfair

Enforcement?, supra, at 29.

B. Excessive Fines, and the Legal Uncertainty

Surrounding Whether They May Be Imposed,

Hinder Beneficial Economic Activity

Absent a check on disproportionate fines, and clarity

that the Excessive Fines Clause applies where fines are

unconnected to a criminal proceeding, beneficial economic

activity is stifled.

1.

“Over-punishment can * * * lead to overdeterrence, where businesses become too cautious and

refrain from undertaking competitive activity because of

fear that the activity may be deemed” a violation of law.

John Terzaken & Pieter Huizing, How Much Is Too

Much? A Call for Global Principles to Guide the

Punishment of International Cartels, at 6 (Spring 2013).

This over-deterrence “chills economic activity and

threatens citizens’ ability to access often necessary and

desirable products (e.g., pharmaceuticals, oil and gas,

foods, etc.).” U.S. Chamber Inst. for Legal Reform,

French Fries to Fossil Fuels: The Misplaced Reliance on

Unfair and Deceptive Practices Laws to Pursue Policy

Agendas at 2 (Aug. 2023). All of this imposes significant

18

opportunity costs on American businesses. The capital

that businesses have to spend paying excessive fines could

otherwise have been spent “expand[ing] their operations,

buy[ing] new equipment that would have been them more

efficient or would have improved the safety of their

operations, or hir[ing] additional employees.” Neil

Bradley, How Excessive Regulation Hurts the Economy,

U.S. Chamber of Com. (Jan. 16, 2025).

“Excessive fines or penalties, for instance, may cause

enterprises to close, which would result in job losses and

a downturn in the economy.” Beyond the Rules: The

Human Cost of Regulatory Enforcement, Regulatory

Compliance News (Sept. 4, 2024).

Excessive fines against businesses also hurt

consumers, raising their costs and reducing their market

choices. See James Cooper & Joanna Shepherd, State

UDAP Laws: An Economic & Empirical Analysis, 81

Antitrust L. J. 947, 974 (2017). “Excessive fines, designed

to punish corporations, will more likely than not hurt

consumers by requiring an excessive increase in prices as

well as an excessive diversion of resources to prevention

activities.” Michael K. Block, Optimal Penalties,

Criminal Law and the Control of Corporate Behavior, 71

B.U. L. Rev. 395, 402 (1991). “[E]xcessive fines may lead

to insolvency * * *, which in certain markets may

significantly weaken competition and ultimately hurt

consumers in that market.” Terzaken & Huizing, supra,

at 6.

2. With governments taking a crabbed interpretation

of the Eighth Amendment, see supra, and with only a few

Excessive Fines decisions from this Court, businesses

face uncertainty in the legal landscape. “With such

unpredictability inevitably comes a chilling effect, as

businesses respond to unknown liability with retreat.”

U.S. Chamber Inst. for Legal Reform, French Fries to

Fossil Fuels, supra, at 33; see also U.S. Chamber Inst. for

19

Legal Reform, Unfair Practices or Unfair Enforcement?,

supra, at 25 (“Due to the lack of notice as to the legality of

conduct under [state consumer-protection statutes], the

unpredictability of the potential penalty, and the lack of

proportionality in many cases between the size of the fine

and the conduct or harm, these civil penalties raise serious

constitutional concerns * * *.”).

These uncertainties further increase businesses’

transaction costs, hinder their entrepreneurial

investments, and deter other economically productive

activities. Moreover, all this uncertainty creates its own

opportunity costs. Businesses have to spend significant

capital trying to navigate—and insure themselves

against—these legally murky excessive-fines regimes.

Businesses and consumers would be better off if financial

penalties were more foreseeable and if each penalty’s size

was constitutionally limited, thereby allowing businesses

to better predict risk and thus invest more of their money

in themselves. See U.S. Chamber Inst. for Legal Reform,

French Fries to Fossil Fuels, supra, at 33-34.

To optimize their activities, businesses “require the

decisions of the courts on commercial issues to be

predictable so that they know where they stand.” L. S.

Sealy & R. J. A. Hooley, Commercial Law: Text, Cases

and Materials at 10 (5th ed. 2003). Indeed, in today’s

commercial environment, predictability is a prerequisite

for economic growth. Most businesses operate across

multiple jurisdictions, some of which reliably apply the

Eighth Amendment to limit the size of fines imposed on

businesses, while others do not. An important

“consequence of unpredictable enforcement and

litigation” is “disengagement by businesses from

commerce in certain jurisdictions” with less predictable

rules, resulting in “less consumer access to products and

services in those jurisdictions.” U.S. Chamber Inst. for

Legal Reform, French Fries to Fossil Fuels, supra, at 33.

20

3. The Court should address the uncertainty by

reaffirming the applicability of the Eighth Amendment in

these contexts.

First, the Court should reiterate that the Excessive

Fines Clause protects against not only excessive fines

connected to criminal proceedings, but also excessive civil

fines and penalties. Contrary to respondent’s and the

United States’s view, that is already the prevailing view of

the courts of appeals. See, e.g., Myrie v. Comm'r, N.J.

Dep't of Corr., 267 F.3d 251, 262 (3d Cir. 2001); United

States ex rel. Bunk v. Gosselin World Wide Moving, N.V.,

741 F.3d 390, 408 (4th Cir. 2013); WCI, Inc. v. Ohio Dep't

of Pub. Safety, 774 F. App’x 959, 967 (6th Cir. 2019);

Towers v. City of Chicago, Ill., 173 F.3d 619, 624 (7th Cir.

1999); Hays v. Hoffman, 325 F.3d 982, 992 (8th Cir. 2003);

Pimentel v. City of Los Angeles, Cal., 974 F.3d 917, 921

(9th Cir. 2020); Yates v. Pinellas Hematology & Oncology,

P.A., 21 F.4th 1288, 1308 (11th Cir. 2021). But see United

States v. Toth, 33 F.4th 1, 19 (1st Cir. 2022), cert. denied,

143 S. Ct. 552 (2023).

Second, the Court should reiterate that

proportionality is the touchstone of whether a fine is

excessive. When reviewing fines imposed under federal

law, this Court has already held that the “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.” United States

v. Bajakajian, 524 U.S. 321, 334 (1998).

Bajakajian’s holding “is deeply rooted and

frequently repeated in common-law jurisprudence,”

Solem v. Helm, 463 U.S. 277, 284 (1983) (collecting

authorities), and it was grounded in the basic “precept of

justice that punishment for crime should be graduated

and proportioned to [the] offense.” Weems v. United

States, 217 U.S. 349, 367 (1910). This Court has

21

“repeatedly applied this proportionality precept in later

cases interpreting the Eighth Amendment,” including in

proceedings arising under state law. Atkins v. Virginia,

536 U.S. 304, 311 (2002).

Yet the federal, State, and local governments’

increasing pursuit of disproportionate civil fines and

penalties illustrates how far they have strayed from these

fundamental principles. The Court should find that the

tax-sale penalty here—and civil fines and penalties more

generally—are protected by the Eighth Amendment.

CONCLUSION

The Court should reverse the decision below.

MARIEL A. BROOKINS

CHRISTOPHER J. WALKER

U.S. CHAMBER

LITIGATION CENTER.

1615 H Street NW

Washington, DC 20062

(202) 463-5337

JOHN P. ELWOOD

Counsel of Record

ANTHONY J. FRANZE

CONNOR J. MORGAN

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5992

john.elwood@arnoldporter.com

DECEMBER 2025

Counsel for Amicus Curiae