Congress Can’t Use COVID Relief To Stop State Tax Cuts

By the Goldwater Institute

With states still feeling the economic damage done by the COVID-19 pandemic, President Joe Biden signed the “American Rescue Plan Act” to give states billions of federal dollars to help them recover. But there’s a catch: The Act effectively prohibits states that take the money from cutting taxes through 2024. That’s unconstitutional—and the Goldwater Institute is joining one legal challenge to it.

Congress can sometimes put conditions on grants to states, but it can’t take advantage of an emergency to coerce states into giving up control of such an important issue of state policy, and it can’t impose a condition on a grant that has nothing to do with the grant’s purpose. That’s why many state attorneys general have filed federal lawsuits challenging this “Tax Mandate”—and it’s why the Goldwater Institute has filed a brief supporting the state of Ohio’s challenge.

THE TAX MANDATE

provision in the Act says that states cannot use federal grant money to “directly or indirectly offset” a loss of revenue resulting from a tax cut enacted between March 2021 and the end of 2024. If they do, the U.S. Secretary of the Treasury will take the federal money back, up to the amount of revenue the state lost. That appears to mean that states that cut taxes between now and 2024 will have to pay back some or all their grant money.

The Tax Mandate’s defenders say this is just to make sure states actually use federal money for COVID relief. But the Tax Mandate doesn’t actually do that. The Act lists four broad categories of things a state can spend federal grant money on. After states spend the money, they have to report how they spent it to the Treasury Secretary. If the Secretary determines that a state spent money on something that doesn’t fall into one of those categories, she can take that money back.

So if a state receives a grant of, say, $5 billion, it has to show that it spent $5 billion on things the Act allows. If some things it reports weren’t appropriate uses of the money, the Secretary can recoup that portion of the grant. That alone ensures that states spend their federal grants for the purposes Congress intended.

The Tax Mandate, on the other hand, does not help ensure that states spend their grant money properly. Instead, it focuses on whether a state indirectly used federal funds to offset revenue lost as a result of tax cuts. That might make sense if the Act were otherwise designed to deny federal money to states that could afford to pay for their own COVID relief (if they put other policy priorities aside). But the Act doesn’t do that.

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