UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ COMMONWEALTH OF KENTUCKY; STATE OF │ TENNESSEE, │ Plaintiffs-Appellees, │ > No. 21-6108 │ v. │ │ JANET YELLEN, in her official capacity as │ Secretary of the Treasury; RICHARD K. DELMAR, in │ his official capacity as Acting Inspector General of │ the Department of the Treasury; UNITED STATES │ DEPARTMENT OF THE TREASURY, │ Defendants-Appellants. │ ┘

On Petition for Rehearing En Banc United States District Court for the Eastern District of Kentucky at Frankfort. No. 3:21-cv-00017—Gregory F. Van Tatenhove, District Judge.

Decided and Filed: May 3, 2023

Before: BUSH and NALBANDIAN, Circuit Judges.* _________________

COUNSEL ON PETITION FOR REHEARING EN BANC: Daniel Winik, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. ON RESPONSE: Matthew F. Kuhn, Michael R. Wajda, OFFICE OF THE ATTORNEY GENERAL OF KENTUCKY, Frankfort, Kentucky, Andrée S. Blumstein, J. Matthew Rice, OFFICE OF THE ATTORNEY GENERAL AND REPORTER OF TENNESSEE, Nashville, Tennessee, for Appellees.

*In view of the retirement of Hon. Bernice Bouie Donald, the third member of the original panel in this appeal, this order is entered by a quorum of the panel. 28 U.S.C. § 46(d). No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 2

BUSH, J. (pp. 3–9), issued a statement, in which KETHLEDGE, THAPAR, and NALBANDIAN, JJ., joined, regarding the denial of rehearing en banc. GRIFFIN, J. (pp. 10– 19), delivered a separate opinion, in which CLAY, GIBBONS, and STRANCH, JJ., joined, dissenting from the denial of the petition for rehearing en banc.

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ORDER _________________

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. No. 21-6108 Commonwealth of Ky., et al. v. Yellen, et al. Page 3

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STATEMENT _________________

JOHN K. BUSH, Circuit Judge, issuing a statement regarding the denial of en banc.

During the debates over ratification of the Constitution, Alexander Hamilton, writing as Publius, insisted that states would retain their authority over their own taxation “in the most absolute and unqualified sense”—keeping any power to infringe that authority out of the new federal government’s hands. See THE FEDERALIST NO. 32, at 154 (Alexander Hamilton) (George W. Carey & James McClellan ed