United States Court of Appeals
           for the Fifth Circuit
                                                             United States Court of Appeals
                                                                      Fifth Circuit


                       ____________                                 FILED
                                                            December 23, 2024
                        No. 24-40792                           Lyle W. Cayce
                       ____________                                 Clerk

Texas Top Cop Shop, Incorporated; Russell Straayer;
Mustardseed Livestock, L.L.C.; Libertarian Party of
Mississippi; National Federation of Independent
Business, Incorporated; Data Comm for Business,
Incorporated,

                                                Plaintiffs—Appellees,

                             versus

Merrick Garland, U.S. Attorney General; Treasury
Department; Andrea Gacki, Director of the Financial
Crimes Enforcement Network; Financial Crimes
Enforcement Network; Janet Yellen, Secretary, U.S.
Department of Treasury,

                                  Defendants—Appellants.
          ______________________________

          Appeal from the United States District Court
               for the Eastern District of Texas
                    USDC No. 4:24-CV-478
          ______________________________

                 UNPUBLISHED ORDER
                                        No. 24-40792


Before Stewart, Haynes, and Higginson, Circuit Judges.1
Per Curiam:
        The Corporate Transparency Act (“CTA”) obliges certain
nonexempt companies to report the identity of their beneficial owners and
applicants for incorporation. 

. On December 3, 2024—less
than one month before the crucial January 1, 2025 reporting deadline—the
district court granted Plaintiffs-Appellees’ (the “Businesses”) motion for a
preliminary injunction and entered a nationwide injunction enjoining the
CTA and the corresponding Reporting Rule. Id.; 

. The
district court concluded that both are unconstitutional and issued nationwide
injunctions against each, despite no party requesting it do so and despite
every other court to have considered this issue tailoring relief to the parties
before it or denying relief altogether.2
        The government, Defendants-Appellants, filed an emergency motion
with this court seeking a stay. Because the government has met its burden
under Nken v. Holder, 

 (2009), we GRANT its motion for a
temporary stay of the district court’s order and injunction pending appeal.


        _____________________
        1
          Judge Haynes joins in part and disagrees in part. She agrees for an expedited
appeal and agrees that a national injunction is not appropriate here, so she would grant a
temporary stay of the preliminary injunction pending the decision of the merits panel
regarding whether to deny a stay pending appeal as to the non-parties. However, she would
deny the temporary stay as to the parties (while, of course, deferring to the merits panel on
this point as well), including the members of NFIB, as long as their identities are disclosed
to the government.
        2
          Three other district courts have assessed the CTA’s constitutionality. Two held
that the CTA is likely constitutional and denied motions for preliminary injunctions.
Firestone v. Yellen, 

, at *10 (D. Ore. Sept. 20, 2024); Cmty. Ass’ns Inst. v.
Yellen, 

, at *14 (E.D. Va. Oct. 24, 2024)). One held that it is
unconstitutional, but only issued an injunction that covered the plaintiffs in that case. Nat’l
Small Bus. United v. Yellen, 

, 1289 (N.D. Ala. 2024).




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                                       No. 24-40792


        When deciding a motion to stay pending appeal, we consider four
factors:
        (1) whether the stay applicant has made a strong showing that
        he is likely to succeed on the merits; (2) whether the applicant
        will be irreparably injured absent a stay; (3) whether issuance
        of the stay will substantially injure the other parties interested
        in the proceeding; and (4) where the public interest lies.
Nken, 

 (internal quotation marks omitted).
        On the first factor, the government has made a strong showing that it
is likely to succeed on the merits in defending CTA’s constitutionality.3
When Congress passed the bipartisan statute in 2021, it used its “broad
authority under the Commerce Clause” to regulate economic activity. See
Nat’l Fed’n of Indep. Bus. v. Sebelius, 

 (2012). As stated, the
CTA requires certain corporate entities to report their beneficial ownership
interest in order to target illicit financial activity. See 

. In
doing so, it regulates anonymous ownership and operation of businesses.
Those “are part of an economic class of activities that have a substantial
effect on interstate commerce.” See Gonzales v. Raich, 

 (2005)
(internal quotation marks omitted). Thus, a reporting requirement for
entities engaged in these economic activities falls within “more than a
century of [the Supreme] Court’s Commerce Clause jurisprudence.” See 

at 29 n.38.



        _____________________
        3
          At minimum, the government has made a “substantial case” on the merits.
Ruiz v. Estelle, 

 (5th Cir. Unit A June 1981) (“On motions for stay pending
appeal the movant need not always show a ‘probability’ of success on the merits; instead,
the movant need only present a substantial case on the merits when a serious legal question
is involved and show that the balance of the equities weighs heavily in favor of granting the
stay.”)




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                                     No. 24-40792


        The Businesses misapply Sebelius to the present case when they
contend otherwise. In the context of the Affordable Care Act’s health
insurance mandate, the Supreme Court concluded that Congress was
attempting to regulate individuals “whose commercial inactivity rather than
activity is [their] defining feature.” 567 U.S. at 556–57 (2012). The CTA,
however, established reporting requirements for corporate entities whose
“defining feature” is their ability and propensity to engage in commercial
activity. See 

 None of the Businesses have claimed that they do not engage
in commercial activity, or economic activity more broadly. And although
some corporate entities might abstain from economic activity, the CTA
excludes many of those from its definition of a “reporting company,” thereby
absolving them of the Act’s reporting obligations. 

(a)(11)(B).
The CTA also allows the federal government to exempt any other “entity or
class of entities” for which reporting would not “serve the public interest”
and “would not be highly useful” in “efforts to detect, prevent, or prosecute
money laundering, the financing of terrorism, proliferation finance, serious
tax fraud, or other crimes.” 

 § 5336(a)(11)(B)(xxiv). While these
exemptions might not sweep in every single dormant corporate entity, they
strongly support the government’s argument that the CTA regulates the
ownership and operation of businesses by imposing modest disclosure
requirements to a facilitate a regulatory scheme aimed at combatting financial
crimes. Because Congress only needs a “rational basis” to conclude that a
regulated activity “substantially affects interstate commerce,” enacting the
CTA was within its commerce power. See Raich, 545 U.S. at 16–17, 19.4

        _____________________
        4
          The government also argues that the CTA is necessary and proper for executing
Congress’s foreign commerce powers, tax powers, and foreign affairs interests, as well as
the President’s law-enforcement and national-security powers. We pretermit discussion of
these arguments here because the government’s Commerce Clause analysis satisfies its
burden under the first Nken factor.




                                           4
                                      No. 24-40792


        Independently, the government has made a strong showing against the
Businesses’ facial challenge to the CTA.5 The Supreme Court has been clear
that a successful facial “challenger must establish that no set of
circumstances exists under which the Act would be valid.” United States v.
Salerno, 

 (1987). In other words, “[t]he fact that [a statute]
might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.” Id.; see also United
States v. Rahimi, 

 (2024) (confirming that, when assessing
facial challenges, courts must “consider the circumstances in which [the
statute is] most likely to be constitutional” instead of “focus[ing] on
hypothetical scenarios where [the statute] might raise constitutional
concerns.”). Here, the CTA at least operates constitutionally when it
requires that corporations engaged in business operations affecting interstate
commerce disclose their beneficial owner and applicant information to the
Department of the Treasury’s Financial Crimes Enforcement Network
(“FinCEN”). See Raich, 

. Thus, the statute is likely
constitutional on its face. See Salerno, 

.
        Moving on, the government satisfies the second Nken factor because
a last-minute injunction of a statute proposed and passed by the people’s
representatives necessarily inflicts irreparable harm. See Maryland v. King,

 (2012). Indeed, “any time a [government] is enjoined by
a court from effectuating statutes enacted by representatives of its people, it



        _____________________
        5
         Notably, the district court skipped over the Businesses’ as-applied challenge and
only assessed the CTA’s facial validity. In doing so, it erroneously departed from what it
acknowledged is the normal rule that “we generally decide the as-applied challenge first
because it is the narrower consideration.” Buchanan v. Alexander, 

 (5th
Cir. 2019).




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                                       No. 24-40792


suffers a form of irreparable injury.” 

 (quoting New Motor Vehicle Bd. of
Cal. v. Orrin W. Fox Co., 

 (1977)).
        Similarly, the government has satisfied the third and fourth Nken
factors by showing that “that the balance of the equities weighs heavily in
favor of granting the stay.” See Ruiz v. Estelle, 

 (5th Cir.
Unit A June 1981). To start, the harm that a stay would cause the Businesses
is minimal. FinCEN estimated that a typical, simple company would spend
about ninety minutes (or about $85 worth of time) to complete and file
CTA’s required report, which may be filed for free. 

,
59589–90 (Sept. 30, 2022). The Businesses neither contend that they have
more complex structures that would require more time or money, nor state
their potential costs with any particularity.6
        When balancing this harm against the public’s urgent interest in
combatting financial crime and protecting our country’s national security,
equity favors a stay. As the government explains, and the district court
recognizes, a last-minute nationwide preliminary injunction would
undermine our ability to push other countries to reform their anti-money




        _____________________
        6
          Because the district court has not yet addressed the CTA’s constitutionality as
applied to the Businesses’ First and Fourth Amendment claims, any additional harm that
they allege they face from the CTA infringing those rights is immaterial to our stay analysis.
See Nken, 

; Google v. Hood, 

 (5th Cir. 2016) (“[I]nvocation
of [constitutional injury] cannot substitute for the presence of an imminent,
non-speculative irreparable injury.”).




                                              6
                                       No. 24-40792


laundering and counterterrorism regimes and to address the most
fundamental gap in our own regime.7
        Accordingly, the government has demonstrated that a stay is
warranted. See Nken, 

.
        IT IS ORDERED that the government’s emergency motion for a
stay pending appeal is GRANTED. IT IS FURTHER ORDERED that
this appeal is EXPEDITED to the next available oral argument panel.




        _____________________
        7
          The Businesses warn that lifting the district court’s injunction days before the
compliance deadline would place an undue burden on them. They fail to note, however,
that they only filed suit in May 2024 and the district court’s preliminary injunction has only
been in place for less than three weeks as compared to the nearly four years that the
Businesses have had to prepare since Congress enacted the CTA, as well as the year since
FinCEN announced the reporting deadline.




                                              7