Amicus Curiae Brief — United States v. Clintwood Elkhorn Mining Co.

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No. 07-308

In the

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

CLINTWOOD ELKHORN

MINING COMPANY, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF AMICUS CURIAE OF

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

ASAT Tee ee ere He ee, oe Pe oe ee

KAREN R.HARNED ANTHONY T. CASO

ELIZABETH MILITO Counsel of Record

Of Counsel Law Office of Anthony T. Caso

National Federation of 8001 Folsom Boulevard

Independent Business Suite 100

Legal Foundation Sacramento, California 95826

1201 F Street, N.W. Telephone: (916) 386-4432

Washington, D.C. 20001 Facsimile: (916) 386-8952

Counsel for Amicus Curiae National Federation

of Independent Business Legal Foundation

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QUESTION PRESENTED

Whether a taxpayer’s suit under the Tucker Act,

28 U.S.C. § 1491(a), seeking damages and interest

for a violation of the Constitution’s specific limitation

on the power of Congress to impose a tax or duty on

exports, is foreclosed by the Internal Revenue Code’s

tax refund scheme.

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TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAE.......................00000. 1

SUMMARY OF ARGUMENT. ........................0ecsseeeeeees 3

GEER ERI ee Or IN Oe PO aS 4

I THE EXPORT CLAUSE

IS SELF-EXECUTING......................cccccsseccesseees 4

A. The Export Clause Imposes

a Clear Limit on the Power

of the Federal Government .....................0. 4

B.° Expressed in Concrete

Financial Terms, the Export

Clause Is Self-Executing ....................ccc008 6

II THE TAX REFUND

ADMINISTRATIVE

PROCEDURE IN SECTION 7422

WAS NOT INTENDED FOR

CONSTITUTIONAL CHALLENGES TO

CONGRESSIONAL ENACTMENTG............. 11

Ili THE TUCKER ACT’S WAIVER OF

SOVEREIGN IMMUNITY AND SIX-YEAR

STATUTE OF LIMITATIONS APPLY TO

CLAIMS FOR DAMAGES FOR VIOLATION

OF THE EXPORT CLAUSE ...............:cccseeees 13

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TABLE OF AUTHORITIES

Cases

Ballard v. Comm’ of Internal Revenue,

EF ___ RE IC SEER we nn eocnsees 2

Fairbank v. United States, 181 U.S. 283 (1901)......... 5

Hatter v. United States,

953 F.2d 626 (Fed. Cir. 1992)............ TOT 9-10, 14

IA 80 Group, Inc. & Subsidiaries v. United States,

347 F.3d 1067 (Bth Cir. 2008) ...0........0...ccccccscccseses 12

Jacobs v. United States, 290 U.S. 13 (1933)........... 8-9

Ledbetter v. Goodyear Tire & Rubber Co., Inc.,

yf Ss | __, , ERRURRERE RI rh enn ene apt Pee aD 2

Mallette Bros. Constr. Co., Inc. v. United States,

COB Fe BOG CR Cae LBBB) inn cess sccsssicvensocccesecsss. 12

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978)......... 2

Mikulski v. Centerior Energy Corp.,

501 F.3d 555 (6th Cir. 2007) ...............:....ccccccssensee 12

Monongahela Navigation Co. v. United States,

I is inseiumbotede 7-8

Pierce v. Underwood, 487 U.S. 552 (1988).................. 2

Ranger Fuel Corp. v. United States,

33 F. Supp. 2d 466 (E.D. Va. 1998)....................0000 6

Rapanos v. United States, 547 U.S. 715 (2006).......... 2

San Diego Gas & Elec. Co. v. City of San Diego,

I ik ciininsitiiniccanndadincbideencseseiasnese 7,9

Seaboard Air Line Ry. Co. v. United States,

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Union Pac. R.R. Co. v. United States,

389 F.2d 437 (Ct. Cl. 1968).................cccccsssessccesseee 12

United States v. Booker, 543 U.S. 220 (2005)........... 12

United States v. Clarke, 445 U.S. 253 (1980)............. g

United States v. Intl Bus. Machines Corp.,

Re a eas ctcctnitndsteacipsosessidbntriedecsinse 4-5

United States v. Mitchell, 445 U.S. 535 (1980) ........ 13

United States v. Mitchell, 463 U.S. 206 (1983) ........ 14

United States v. Rogers, 255 U.S. 163 (1921)............. 8

United States v. U.S. Shoe Corp.,

Se cis aicicistaiccniadeiecnannonsatssnanoniesonnes 5

Venture Coal Sales Co. v. United States,

370 F.3d 1102 (Fed. Cir. 2004)...............cccceeeeeeeeeees 6

Walters v. Metro. Educ. Enters., Inc.,

Uh iia ics castsersesvintonsneoianth 2

Winkelman ex rel. Winkelman v. Parma

City Sch. Dist., 127 S. Ct 1994 (2007)................... 11

United States Constitution

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Federal Statutes

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SERS oO NN ORR RES OF 2 9, 11-12

RARE IRESERA SSE se ot eae aC RRS RISO Ee 13-14

Rules of Court

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Miscellaneous

Avalon Project at Yale Law School website,

The Debates in the Federal Convention of 1787:

Reported by James Madison: August 16, 1787,

available at http://www.yale.edu/lawweb/

avalon/debates/816.htm

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United States Small Business Administration

website, FAQs: Frequently Asked Questions,

available at http://app1.sba.gov/faqs/

faqindexAll.cfm?areaid=24

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William J. Dennis, Jr., Coping with Regulation,

NFIB National Small Business Poll,

Vol. 1, Issue 5, 2001, available at http://www.

411sbfacts.com/sbpoll.php?POLLID=003

8&KT_back=1 (last visited Feb. 17, 2008).............. 2

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INTEREST OF AMICUS CURIAE

Amicus, Nation Federation of Independent

Business Legal Foundation! is the legal voice of

small business in America. As the legal arm of

NFIB, the Legal Foundation represents the interests

of small business in the nation’s courts. The Legal

Foundation participates in precedent setting cases

that will have a critical impact on small businesses

nationwide, such as the case before the Court in this

action.

The National Federation of Independent

Business is an organization of more than 350,000

members in all 50 states. The members of NFIB are

the small businesses that make up the backbone of

the American economy. Small businesses account for

more than 99% of all employers in the country and

provide more than one-half of all jobs in our

economy. More importantly, two-thirds of new job

growth comes from small business. According to the

United States Small Business Administration, small

business accounts for more than half of the private

nonfarm gross domestic product in America. United

States Small Business Administration website,

‘ Pursuant to this Court’s Rule 37.3(a), all parties have

consented to the filing of this brief. Counsel of record for all

parties received notice at least 10 days prior to the due date of

the Amicus Curiae’s intention to file this brief. Letters

evidencing such consent have been filed with the Clerk of the

Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no

counsel for any party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than Amicus Curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

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FAQs: Frequently Asked Questions, available at

http://app1.sba.gov/faqs/faqIndexAll.cfm?areaid=24

(last visited Feb. 17, 2008). In addition to providing

goods and services in every sector of the economy

(including exporting goods to other countries), NFIB

members bear a significant portion of the overall

national tax burden.

In pursuit of its goal to support small business

in America, NFIB and the NFIB Legal Foundation

have participated as amicus curiae in several cases

before this Court including Ledbetter v. Goodyear

Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007),

Rapanos v. United States, 547 U.S. 715 (2006),

Ballard v. Comm’r of Internal Revenue, 544 U.S. 40

(2005), Walters v. Metro. Educ. Enters., Inc., 519 U.S.

202 (1997), Pierce v. Underwood, 487 U.S. 552

(1988), and Marshall v. Barlow’s, Inc., 436 U.S. 307

(1978).

This case is of special interest to small

businesses that are often on the front lines of new

taxing schemes. Small-business owners most often

identify tax-related regulations as the most

burdensome type of regulations with which they

must comply. William J. Dennis, Jr., Coping with

Regulation, NFIB National Small Business Poll,

Vol. 1, Issue 5, 2001, at 4, available at http://www.

411sbfacts.com/sbpoll.php? POLLID=0038&KT_back

=1 (last visited Feb. 17, 2008). Because a complex

and often unfair tax code and burdensome taxes are

among the top concerns of small-business owners,

NFIB is committed to securing tax relief and equity

for its members.

These issues are at the forefront of this case

where the government is urging a requirement that

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taxpayers file constitutional challenges to

Congressional enactments with an administrative

agency that has no authority to rule on the

challenge, and then wait six months for the agency to

decide it has no authority to strike down an act of

Congress before a legai action may be filed. The

resources of small business are better spent growing

the economy and creating new jobs.

SUMMARY OF ARGUMENT

The United States has already conceded that the

tax at issue here violated the Export Clause of the

Constitution. U.S. Const. art. I, § 9, cl. 5. The

dispute now centers on the remedy for those injured

by the unconstitutional enactment. More precisely,

the question is whether Congress intended that

challenges to constitutionality of federal laws be

referred to an executive agency for resolution.

It may be that not every provision of the

Constitution is “self-executing,” and certainly few

violations call for a damages remedy as a matter of

constitutional text. Where the scope of the violation

is expressed in the Constitution in concrete financial

terms, however, this Court has ruled that the

provision of the Constitution is self-executing. That

is the case with the Export Clause. The clause is a

specific limit on the power of Congress and is

expressed in concrete financial terms. Thus, the

Export Clause supports a cause of action for

damages.

The United States urges that this action for

damages for constitutional violations must be

referred to an administrative agency. Yet, the

statute on which the United States relies will not

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support such a construction. There is no evidence

that Congress intended that constitutional

challenges to its authority be presented to the

Secretary of the Treasury for resolution. It is certain

that the Secretary has no authority to strike a

Congressional enactment, and there is no evidence

that Congress attempted to grant the Secretary such

a judicial power.

With no other more specific Congressional

enactment directly applicable, those who were

damaged by the unconstitutional enactment are free

to file their damage claims in the Claims Court

under the Tucker Act. That act constitutes a waiver

of sovereign immunity and provides the appropriate

limitations period for filing damages actions based

on the unconstitutional exaction.

ARGUMENT

THE EXPORT CLAUSE IS SELF-EXECUTING

A. The Export Clause Imposes a Clear Limit

on the Power of the Federal Government

This Court has noted that the limitation

imposed by the Export Clause is clear and direct.

United States v. Intl Bus. Machines Corp., 517 U.S.

843, 846 (1996). The clause is the result of a

compromise struck between northern and southern

states at the constitutional convention. Without this

clear limit imposed on the scope of federal

government power, the constitution may not have

been possible. See The Avalon Project at Yale Law

School website, The Debates in the Federal

Convention of 1787: Reported by James Madison:

August 16, 1787, available at http://www.yale.edu/

lawweb/avalon/debates/816.htm (last visited Feb. 17,

2008); United States v. U.S. Shoe Corp., 523 U.S.

360, 367-69 (1998); Intl Bus. Machines Corp., 517

U.S. at 859-60; Fairbank v. United States, 181 U.S.

283, 290 (1901). Although the United States has

attempted to characterize this as a “narrow purpose”

deserving of a narrow construction, Fairbank, 181

U.S. at 292, this Court has rejected such an

approach. Id.

As in Fairbank, we think the text of the

constitutional provision provides a

better decisional guide than that offered

by the Government. The Government’s

policy argument-that the Framers

intended the Export Clause to narrowly

alleviate the fear of northern repression

through taxation of southern exports by

prohibiting only discriminatory taxes—

cannot be squared with the broad

language of the Clause. The better

reading, that adopted by our earlier

cases, is that the Framers sought to

alleviate their concerns by completely

denying to Congress the power to tax

exports at all.

Intl Bus. Machines Corp., 517 U.S. at 860-61.

However narrow one might characterize the debate

over this provision, “the remedial provision that

ultimately became the Export Clause does not [have

a narrow focus], and there is substantial evidence

from the Debates that proponents of the Clause fully

intended the breadth of scope that is evident in the

language.” Id. at 860.

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The tax at issue in this case breaches this

limitation on the power of Congress. The Coal Excise

Tax (26 U.S.C. § 4121) imposed a tax on all coal-

including coal that was exported to other countries.

Ranger Fuel Corp. v. United States, 33 F. Supp. 2d

466, 468 (E.D. Va. 1998). While prior statutes

levying similar excise taxes included a_ specific

provision exempting products slated for export, this

statute contained no such exemption. Id. In Ranger

Fuel, the federal district court ruled the tax

unconstitutional as a violation of the Export Clause.

Id. at 469. The Internal Revenue Service acquiesced

to the ruling. See Venture Coal Sales Co. v. United

States, 370 F.3d 1102, 1103 n.1 (Fed. Cir. 2004).

It is conceded, therefore, that Congress had no

power under the Constitution to impose this tax on

coal slated for export. As explained below, this

violation of the Export Clause supports a cause of

action for damages.

B. Expressed in Concrete Financial Terms,

the Export Clause Is Self-Executing

For the most part, the limitations on federal

power under the Constitution are not expressed in

financial terms. There is thus no intent expressed in

the text of the Constitution that would support a >

claim for damages. A few provisions of the

Constitution, however, do define the limit of federal

power in financial terms. The text of the

Constitution itself defines the nature of the injury in

concrete financial terms and no further congressional

action is required to define a damages remedy. A

clear example of this is the Takings Clause of the

Fifth Amendment.

The Fifth Amendment provides: “nor shall

private property be taken for public use, without just

compensation.” U.S. Const. amend. V. The Takings

Clause imposes a clear limitation on the reach of

government power, prohibiting the uncompensated

confiscation of private property. See San Diego Gas

& Elec. Co. v. City of San Diego, 450 U.S. 621, 654

(1981). In this context, “just compensation” is not

stated as a “remedy” for the seizure of property.

Instead, it is the necessary precondition for a lawful

taking under the Constitution. See Monongahela

Navigation Co. v. United States, 148 U.S. 312, 325

(1893).

Yet the “just compensation” language of the

Fifth Amendment also serves to define the nature of

the violation in concrete financial terms. When

property is taken without payment or with less than

adequate compensation, the Fifth Amendment

dictates the measure of damages—just compensation.

Under the Fifth Amendment, payment of just

compensation is the necessary precondition for a

constitutional taking. Thus, payment of just

compensation is the minimum remedy called for in

the Constitution for an uncompensated taking. Jd.

No action of Congress is necessary to define the scope

of the damages to be awarded. Seaboard Air Line

Ry. Co. v. United States, 261 U.S. 299, 304 (1923).

This self-contained definition of the injury is

what establishes the self-executing nature of the

Takings Clause. As this Court has noted:

But we need not have recourse to this

natural equity, nor is it necessary to

look through the constitution to the

affirmations lying behind it in the

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Declaration of Independence, for in this

fifth amendment there is stated the

exact limitation on the power of the

government to take private property for

public uses.

Monongahela Navigation Co., 148 U.S. at 325. The

constitutional command for “just” compensation also

convinced this Court that the damages remedy must

include the rayment of interest from the date of the

taking. Seaboard Air Line Ry. Co., 261 U.S. at 304.

This Court has not treated this as a matter in

dispute. Instead, it is a simple and noncontroversial

application of the limitation of government power

imposed by the Constitution. “Having taken the

lands of the defendants in error, it was the duty of

the government to make just compensation as of the

time when the owners were deprived of their

property.” United States v. Rogers, 255 U.S. 163, 169

(1921). The Court’s decision in Jacobs v. United

States, 290 U.S. 13 (1933), provides a clear statement

of the principle:

The suits were based on the right to

recover just compensation for property

taken by the United States for public

use in the exercise of its power of

eminent domain. That right was

guaranteed by the Constitution. The

fact that condemnation proceedings

were not instituted and that the right

was asserted in suits by the owners did

not change the essential nature of the

claim. The form of the remedy did not

qualify the right. It rested upon the

Fifth Amendment. Statutory recognition

was not necessary. A promise to pay

was not necessary. Such a promise was

implied because of the duty to pay

imposed by the amendment. The suits

were thus founded upon the

Constitution of the United States.

Id. at 16 (emphasis added). This recognition that the

Takings Clause of the Fifth Amendment supported a

free-standing damages remedy was repeated in

United States v. Clarke, 445 U.S. 253, 257 (1980)

(citation omitted) (“A landowner is entitled to bring

such an action as a result of ‘the self-executing

character of the constitutional provision with respect

to compensation.”) and San Diego Gas & Elec. Co.,

450 U.S. at 654.

These same principles were at work in Hatter v.

United States, 953 F.2d 626 (Fed. Cir. 1992) in a

claim regarding judicial pay. The court in Hatter

considered a claim that the Social Security

Amendments of 1983 violated Article III, section 1 of

the Constitution providing that judges’ compensation

“shall not be diminished during their continuance in

office.” Id. at 628. The challenged enactment

extended social security coverage (and _ tax

assessments) to federal judges, effectively reducing

the compensation that the judges received. Id. at

627. As in this case, the judges brought their action

under the Tucker Act seeking damages for violation

of their rights under this provision of the

constitution. Jd. at 627-28. The United States

sought dismissal of the case since the judges did not

submit an administrative claim for refund under

26 U.S.C. § 7422.

The court of appeals rejected the argument that

the judges were required to file administrative

claims for tax refunds. The court noted that

Article III, section 1 “of the Constitution, fairly

interpreted, mandates the payment of money in the

event of a prohibited compensation diminution. ...

This language presupposes damages as the remedy

for a governmental act violating the compensation

clause.” Hatter, 953 F.2d at 628.

As was the case with the Takings Clause, the

court noted that this provision of the Constitution

was stated in concrete financial terms—no further

definition of the remedy is required by Congress.

“(T]he Constitution itself provides a remedy—

compensation. In sum, by forbidding any diminution

of judicial compensation, the Constitution itself

requires repayment of prohibited reductions in

compensation to Article III judicial officers.” Id.

at 628. The court concluded that both the purpose

and text of Article III, section 1 “embraces a self-

executing compensatory remedy.” Id. at 629.

The same is true for the Export Clause. The

very precision of this limitation on the scope of

Congressional power defines the minimum necessary

damages remedy-return of the “tax or duty” that was

levied on the export. Requiring further legislative or

executive action would frustrate the purpose of the

Export Clause. See id. at 628-29. As with the

Takings Clause and the Judicial Compensation

Clause, the Constitution itself defines the remedy.

Because the remedy is defined in the Constitution

(just compensation for a taking, restoration of salary

for a diminution of judicial compensation; or return

of a tax or duty levied on exports), the provision of

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the Constitution is “self-executing” and supports an

action for those damages without any further action

of Congress.

7 THE TAX REFUND

ADMINISTRATIVE PROCEDURE IN

SECTION 7422 WAS NOT INTENDED

FOR CONSTITUTIONAL CHALLENGES

TO CONGRESSIONAL ENACTMENTS

The brief for the United States notes that

Congress has set out a “detailed and finely

reticulated refund scheme, including the mandatory

administrative claims process” for challenges to the

application of the Tax Code. Brief for the United

States at 8 (emphasis added). This is undoubtedly

an accurate assessment of the administrative remedy

provided for under 26 U.S.C. § 7422. However, the

United States misses the import of having such a

“finely reticulated” procedure. Whenever a detailed

procedure is present in the statute, that very detail

provides the Court with its best clue as to legislative

intent. See Winkelman ex rel. Winkelman v. Parma

City Sch. Dist., 127 S. Ct 1994, 1996 (2007).

In the case of Section 7422, Congress required

an administrative claim for refund to first be filed

with the Secretary of the Treasury. Under this

scheme, no judicial action for remedy may be filed

until the Secretary has had at least six months on

which to act on the administrative petition.

26 U.S.C. § 6532. . This detailed procedure is

obviously applicable to allegations that the Secretary

has erred—either as a matter of fact or statutory

interpretation—in the application of the Tax Code to

an individual taxpayer. See Mikulski v. Centerior

Energy Corp., 501 F.3d 555, 564 (6th Cir. 2007).

Courts have consistently held that the intent behind

this procedure is for claims to be resolved short of

; litigation. See IA 80 Group, Inc. & Subsidiaries v.

United States, 347 F.3d 1067, 1074 (8th Cir. 2003);

b Mallette Bros. Constr. Co.; Inc. v. United States, 695

; F.2d 145, 155 (5th Cir. 1983); Union Pac. R.R. Co. v.

F United States, 389 F.2d 437, 442 (Ct. Cl. 1968). The

FE United States argues in this case, however, that this

procedure was also intended for challenges to the

constitutionality of a Congressional enactment.

4 The brief of the United States offers no evidence

of a legislative intent that constitutional challenges

; were to be referred to the Secretary of the Treasury.

r Adjudicating the constitutionality of an Act of

Congress is, of course, a judicial function. Congress

;

could not assign that power to the executive. See

United States v. Booker, 543 U.S. 220, 243 (2005).

Given that it is unlikely that Congress intended

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to grant the Secretary of the Treasury the power to :

d rule on the constitutionality of an Act of Congress,

the application of Section 7422 to this proceeding

: becomes even more problematic. As noted, the

: statute requires the initial claim to be filed with the j

Secretary. 26 U.S.C. § 7422. No judicial action may |

be filed until six months have elapsed after this

filing. 26 U.S.C. § 6532. There is no purpose served

to presenting an administrative petition for refund

based on a constitutional challenge to the statute.

Nor can there be any legitimate purpose behind a

six-month moratorium on judicial review of that

constitutional challenge.

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The United States notes that Congress is free to

impose whatever administrative procedures it

desires as a condition to the waiver of sovereign

immunity. Brief of the United States at 28.

However, there is no evidence to suggest that

Congress intended to impose pointless procedural

hurdles to claims such as that before the Court in

this action.- The procedural “hoops” to filing a

constitutional challenge advocated by the United

States in this case would only serve to make a

challenge more costly and to ensure that it would

take longer to resolve. Before this Court embarks on

an analysis to determine if Congress has the

authority to impose barriers to constitutional claims,

the Court should first determine if Congress actually

intended to require such apparently pointless

hurdles to a constitutional claim.

The finely wrought and detailed administrative

procedure for challenging an action of the Internal

Revenue Service simply has no _ place in

the resolution of constitutional challenges to

congressional enactments.

Ill

THE TUCKER ACT’S WAIVER

OF SOVEREIGN IMMUNITY AND

SIX-YEAR STATUTE OF LIMITATIONS

APPLY TO CLAIMS FOR DAMAGES FOR

VIOLATION OF THE EXPORT CLAUSE

The Tucker Act recognizes jurisdiction in the

Claims Court to hear damages claims against the

United States based on the Constitution. 28 U.S.C.

§ 1491. The Act does not establish a cause of action,

United States v. Mitchell, 445 U.S. 535, 538 (1980),

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but does operate as a waiver of sovereign immunity,

United States v. Mitchell, 463 U.S. 206, 215 (1983).

In Hatter, the Federal Circuit held that the

Tucker Act provided jurisdiction for the Claims

Court to hear a claim for damages based on a self-

executing provision of the Constitution. Hatter, 953

F.2d at 627-28. According to that decision, for a

claimant to invoke the court’s jurisdiction under the

Tucker Act, it must demonstrate “an independent

source of federal law” for the claim and must further

demonstrate that the particular federal law

“provide[s] a damages remedy for violations.” Id.

at 628. This was satisfied in Hatter by the reference

to Article III, section 1-the Judicial Compensation

Clause.

The court in Hatter reasoned that the

Compensation Clause provided its own remedy. “By

forbidding any diminution of judicial compensation,

the Constitution itself requires repayment of

prohibited reductions in compensation to Article III

judicial officers.” Jd. Thus, the court ruled that the

judicial officers in Hatter could bring their claim in

the Claims Court pursuant to the Tucker Act.

This same reasoning applies in this case. As

demonstrated above, the Export Clause also provides

its own remedy. Because it is a clearly stated

limitation on the power of Congress framed in

financial terms, the clause is “self-executing.” It

thus fulfills the requirement for a claim “founded ...

upon the Constitution.” 28 U.S.C. § 1491. The

provision of the Constitution, fairly interpreted,

establishes “a damages remedy for violations.” See

Hatter, 953 F.2d at 628. This action was, therefore,

properly before the Claims Court.

FOE TD TE SE ee OM ee ee a ee

Pee ee eee ST OP a ae PUT et eee ae Cate eee oe ee Sabo watts haa ret x

The United States expresses concern, however,

- that this will lead to the filing of every constitutional

challenge to a tax under the Tucker Act. . Brief for

the United States at 28. This parade of horribles,

however, will not result from the analysis urged by

Respondent. The First Amendment claims feared by

the United States are based on a textual command

that “Congress shall make no law”. U.S. Const.

amend. I. That text does not demonstrate any intent

that there is a damages remedy for a breach of the

limit on Congressional power. By contrast, the

Export Clause forbids the imposition of a “tax or

duty” on exports. Because of the nature of the limit

on the power of Congress, the measure is defined in

financial terms. The obvious remedy for the

imposition of a tax forbidden by the Constitution is

monetary damages. Such a remedy makes the

citizen whole and fulfills the purpose of the

Constitution. Because the Export Clause is self-

executing and contemplates an award of damages

(return of the unconstitutional tax collection), the

Tucker Act supplies the necessary jurisdiction for the

Claims Court to hear this case.

CONCLUSION

The judgment of the Court of Appeals for the

Federal Circuit should be affirmed.

DATED: February, 2008.

Respectfully submitted,