Prohibition on ARPA ‘tax cuts’ declared unconstitutional

TWO RECENT COURT decisions indicate even the US government has limited influence over how states spend their money. 

The traditional way the federal government gains leverage over state policies is by using carrots – offering additional federal money, for example, if a state adopts a certain type of program or passes a specific kind of law.

But when Congress in 2021 passed the American Rescue Plan Act, or ARPA, it tried to sway state fiscal practices using more of a stick approach. 

 The goal of the law, a $1.9 trillion stimulus package to deal with the economic and health impacts of COVID-19, was to pump money into the stagnant economy, not to finance tax cuts. So states were prohibited from using any ARPA money they received “to either directly or indirectly offset a reduction in their net tax revenue.”  

What that meant is a state could not lower a tax or delay a tax increase and use ARPA funds to plug the gap. States that violated the so-called tax mandate could be forced to return their ARPA money. 

Every state signed on to accept the money, but 13 filed suit claiming the tax mandate was unconstitutional. The 13 states were Alabama, Alaska, Arkansas, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia.

A federal court sided with the 13 states and an appeals court last week unanimously upheld the decision. The appeals court decision went on for 42 pages, but its analysis of enforcement of the tax mandate provision was the most interesting.

A direct violation would occur under the law if ARPA funds were deposited in a state’s general fund in order to fill a revenue hole created by a tax cut. An indirect violation could occur if expenditures were reduced by $2 billion in one area of state government to pay for a tax cut of the same amount and $2 billion in ARPA funds was used to plug the hole.

“Extrapolating from the second example, an indirect offset could be boundless,” the appeals court ruling said. “Even a novice in accounting readily grasps that balancing a budget requires offsetting revenue shortfalls with other funds––or with expenditure cuts. Thus, because money is fungible, the secretary could always assert a plausible argument that a state, after a tax cut, committed an unlawful indirect offset of the attendant revenue shortfall.”

The situation sounds a lot like the predicament taxpayers may find themselves here in Massachusetts with the millionaire tax.

Voters in November approved a constitutional amendment assessing an income tax surcharge of 4 percent on income over $1 million, with the money collected going to support education and transportation.

Collection of the tax itself should be fairly straightforward, but requiring the money to be spent on education and transportation may be difficult to enforce given that any increase in funding from the millionaire tax could be offset by shifting funds in those areas to other parts of state government.

Evan Horowitz, executive director of the Center for State Policy Analysis at Tufts University, said federal regulators gave up fairly quickly on the idea of enforcing the so-called tax mandate in the ARPA law, largely because of the difficulty in tracing fungible money.

Horowitz sees that same concept playing out frequently at the local level, both with the millionaire tax and even with debate over scaling back the state’s estate tax. He said there’s no causal link between the new millionaire tax and efforts to reduce the estate tax, but many policymakers are connecting the dots between the two taxes because they both impact wealthy people and raising taxes with one and reducing them with another balances the scale in some sense. 

“It’s now OK to reduce the estate tax because we have the millionaire tax,” he said. “The fact that the link can’t be pinned down is at the center of all of these discussions.”




Artificial deadline: Former governor Charlie Baker predicted the state’s emergency shelter system for immigrants would be overflowing by March, but House leaders don’t seem in any rush to address the problem. House Speaker Ron Mariano calls March an “artificial deadline.” Read more.


Racist environmental policies: Brita Lundberg of Greater Boston Physicians for Social Responsibility and Adrienne Allen of the North Shore Physicians Group call on Gov. Maura Healey to prioritize enforcement of the environmental justice provisions of the climate roadmap law. They cite racist policies in East Boston, Peabody, and Weymouth. Read more.





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The American Journalism Project awards $3.25 million in grants to three local news organizations in North Carolina, Texas, and Nebraska.