The Corporate Transparency Act (CTA) Deserves More Attention on HN
Perhaps these opening lines from the USDC E.D. Texas, Sherman Division's recent opinion[4] may spark some interest and thoughtful discussion (or at least awareness for the many business owners here):
> “Great nations, like great men, should keep their word.” Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 142, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960) (Black, J., dissenting). Ours is a written Constitution. The promises it makes to the People and the States alike are not hidden. The Court must enforce them. “The powers of the legislature are defined, and limited: and ․ those limits may not be mistaken, or forgotten, the [C]onstitution is written.” Marbury v. Madison, 5 U.S. 137, 176, 1 Cranch 137, 2 L.Ed. 60 (1803). While the Court defers to Congress on matters of policy, interpretation of the Constitution is an area where Congress enjoys no authority. Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 128 S.Ct. 2326, 171 L.Ed.2d 203 (2008) (“[I]t is not for [the Court] to substitute [its] view of ․ policy for the legislation which has been passed by Congress.”); Marbury, 5 U.S. at 177. Legislative ingenuity, dispatched to meet today's problems, is not measured by any other standard than our written Constitution. Modern problems may well warrant modern solutions, but modernity does not grant Congress a roving license to legislate outside the boundaries of our timeless, written Constitution. See, e.g., Louisiana v. Biden, 55 F.4th 1017, 1032 (5th Cir. 2022) (“The Constitution is not abrogated[, even] in a pandemic.”). The Constitution must stand firm.
> In the matter before the Court, Plaintiffs challenge an unprecedented law known as the Corporate Transparency Act (“CTA”). It represents Congress's attempt to combat bad actors’ ability to cloak their criminal activities in a veil of corporate anonymity. At its most rudimentary level, the CTA regulates companies that are registered to do business under a State's laws and requires those companies to report their ownership, including detailed, personal information about their owners, to the Federal Government on pain of severe penalties. Though seemingly benign, this federal mandate marks a drastic two-fold departure from history. First, it represents a Federal attempt to monitor companies created under state law—a matter our federalist system has left almost exclusively to the several States. Second, the CTA ends a feature of corporate formation as designed by various States—anonymity. For good reason, Plaintiffs fear this flanking, quasi-Orwellian statute and its implications on our dual system of government. As a result, Plaintiffs contend that the CTA violates the promises our Constitution makes to the People and the States. Despite attempting to reconcile the CTA with the Constitution at every turn, the Government is unable to provide the Court with any tenable theory that the CTA falls within Congress's power. And even in the face of the deference the Court must give Congress, the CTA appears likely unconstitutional. Accordingly, the CTA and its Implementing Regulations must be enjoined.
[1] https://www.hklaw.com/en/insights/publications/2024/12/corporate-transparency-act-nationwide-injunction-in-place-again
[2] https://www.newsweek.com/corporate-transparency-act-means-jail-time-small-business-owners-opinion-1894964
[3] https://www.forbes.com/sites/kellyphillipserb/2024/12/06/fincen-says-corporate-transparency-act-cta-reports-are-voluntary-following-court-decision/
[4] https://caselaw.findlaw.com/court/us-dis-crt-e-d-tex-she-div/116745988.html