Major Questions Doctrine.  The court finds the states are likely to be successful in their argument that HHS exceeded its statutory authority and violated the major questions doctrine.  On this point it states:

Good afternoon: I have a couple of federal funding updates. 1. Today, the court issued a preliminary injunction in Colorado v. Department of Health and Human Services, which was the case brought by a coalition of states against HHS for HHS' wholesale termination of CDC / SAMHSA / public health funding totaling $11 billion. I am attaching the court's decision. The court found that it had jurisdiction under the Tucker Act and also found the states were likely to be successful on the merits, including on the major questions doctrine issue and that the grants were terminated contrary to law, and that the terminations likely violated the APA. The court also found the States were likely to succeed in their separation of powers argument concluding "HHS' actions here clearly usurped Congress's authority to spend and allocate funds how it deems appropriate." Tucker Act. The court rejected the federal government's Tucker Act arguments. The court reasoned that it must look at both the source of the rights upon which the plaintiff bases its claim, and the type of relief sought. The court found that the "gravamen of the States' allegations does not turn on terms of a contract between the parties: it turns largely on federal statutes and regulations put in place by Congress and HHS." The court found the States' assertion of constitutional claims made it even clearer that the source of the rights was not a purely contractual claim. And the court found the federal government "overreads the three-page stay order" issued by the Supreme Court. On why this is not a contractual claim: To illustrate the point: throughout their briefing, the States have not pointed the Court to specific terms and conditions in their grant agreements. Instead, the States challenge the process HHS undertook in implementing the Public Health Funding Decision based on HHS' alleged violations of federal law. Ultimately, this case concerns the process the Government undertook when terminating the funding based on the end of the pandemic, meaning that the States have not put the specific terms and conditions of their agreements at issue. To be clear, the fact that there are underlying contractual relationships between the States and HHS does not automatically "convert a claim asserting rights based on federal regulations into one which is, at its essence, a contract claim." Simply because "a judicial remedy may require one party to pay money to another" does not necessarily "characterize the relief as money damages." Bowen, 487 U.S. at 893. A hallmark of such equitable actions is the existence of prospective relief in ongoing relationships The Court finds that this case does not concern contractual obligations or money damages for past harm. Rather, the States ask for a review of an agency's alleged unlawful action and seek prospective relief based on their ongoing relationship with the federal government to prevent harm to their local health jurisdictions. The Court recognizes the tension between Bowen and California. But the Court is not positioned to disregard Bowen and its progeny, even if it appears that it is now in tension with California. Major Questions Doctrine. The court finds the states are likely to be successful in their argument that HHS exceeded its statutory authority and violated the major questions doctrine. On this point it states: All three factors-background legal conventions, constitutional structure, and common sense-caution against accepting HHS' assertion of authority. Congress already considered the appropriations at issue here and clearly determined that some programs and services were still necessary, no matter when the pandemic ended. More importantly, when undertaking this review in June 2023, Congress did not grant HHS authority to rescind or reallocate the funds, nor did it authorize such drastic action. ... Thus, Congress's express decision to eliminate some COVID-era public health funding, but leave alone the funding at issue here, signals its intent to continue that funding. Consequently, HHS' Public Health Funding Decision usurped Congress's power to control these public health appropriations. If Congress intended to charge HHS with such a determination, it would have done so at some point-like in June 2023, when it went line-by-line and rescinded some COVID-era funding but left other funding in place. With that in mind, the Court holds that the States are likely to succeed on Count I. Scope of Relief: The injunction applies to the litigating states and their local health jurisdictions: "This injunction is limited to funding for Plaintiff States, including their local health jurisdictions and any bona fide fiscal agents of Plaintiff States or their local health jurisdictions." 1. Possible Language for contracts. I am providing a notation that a member mentioned on yesterday's funding call that they are providing to their contract terms based on new grant conditions and possible termination of awards: Contractor acknowledges and agrees that this Contract is funded by _____________________and thus Contractor is bound by the terms, conditions, and project requirements as set forth in the Notice of Award, if applicable, or any exhibits attached hereto and incorporated herein. In the event that the grant is discontinued, the amount of available funding under the grant is reduced, or otherwise made unavailable to the Board as a result of legislatively supported action or an Executive Order from the Governor of the state of XX or the President of the United States, the Board will have the right to terminate or modify this Contract immediately, without penalty to the Board. Furthermore, in the event that payment of the grant funding to Contractor has been found to be contrary to law, this Contract will terminate immediately Thanks, Amanda [logo]<https://imla.org/> [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> Amanda Karras (she/her) Executive Director / General Counsel International Municipal Lawyers Association P: (202) 466-5424 x7116 D: (202) 742-1018 51 Monroe St. Suite 404 Rockville, MD, 20850 Plan Ahead! See IMLA's upcoming events<https://imla.org/events/>, calls and programming.