Maria Weidenburner v. Pamela Bondi

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-3237
___________________________
Bio Gen LLC; Drippers Vape Shop LLC; Cigarette Store LLC, doing business as
Smoker Friendly; Sky Marketing Corporation, doing business as Hometown Hero
Plaintiffs - Appellees
v.
Sarah Huckabee Sanders, Governor; in her official capacity; Tim Griffin, Attorney
General; in his official capacity; Todd Murray, in his official capacity as
prosecuting attorney for the State of Arkansas; Sonia Eileen Fonticiella, in her
official capacity as prosecuting attorney for the State of Arkansas; Devon Holder,
in his official capacity as prosecuting attorney for the State of Arkansas; Matt
Durrett, in his official capacity as prosecuting attorney for the State of Arkansas;
Jeff Phillips, in his official capacity as prosecuting attorney for the State of
Arkansas; Will Jones, in his official capacity as prosecuting attorney for the State
of Arkansas; Teresa Howell, in her official capacity as prosecuting attorney for the
State of Arkansas; Ben Hale, in his official capacity as prosecuting attorney for the
State of Arkansas; Connie Mitchell, in her official capacity as prosecuting attorney
for the State of Arkansas; Dan Turner, in his official capacity as prosecuting
attorney for the State of Arkansas; Jana Bradford, in her official capacity as
prosecuting attorney for the State of Arkansas; Frank Spain, in his official capacity
as prosecuting attorney for the State of Arkansas; Tim Blair, in his official capacity
as prosecuting attorney for the State of Arkansas; Kyle Hunter, in his official
capacity as prosecuting attorney for the State of Arkansas; Daniel Shue, in his
official capacity as prosecuting attorney for the State of Arkansas; Jeff Rogers, in
his official capacity as prosecuting attorney for the State of Arkansas; David
Ethredge, in his official capacity as prosecuting attorney for the State of Arkansas;
Tom Tatum, II, in his official capacity as prosecuting attorney for the State of
Arkansas; Drew Smith, in his official capacity as prosecuting attorney for the State
of Arkansas; Rebecca Reed McCoy, in her official capacity as prosecuting attorney
for the State of Arkansas; Michelle Lawrence, in her official capacity as
prosecuting attorney for the State of Arkansas; Debra Buschman, in her official

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capacity as prosecuting attorney for the State of Arkansas; Tony Rogers, in his
official capacity as prosecuting attorney for the State of Arkansas; Nathan Smith,
in his official capacity as prosecuting attorney for the State of Arkansas; Carol
Crews, in her official capacity as prosecuting attorney for the State of Arkansas;
Kevin Holmes, in his official capacity as prosecuting attorney for the State of
Arkansas; Chris Walton, in his official capacity as prosecuting attorney for the
State of Arkansas; Chuck Graham, in his official capacity as prosecuting attorney
for the State of Arkansas; Jim Hudson, in his official capacity as director of the
Arkansas Department of Finance and Administration (originally named as
Arkansas Department of Finance and Administration); Greg Sled, in his official
capacity as director of the Arkansas Tobacco Control Board (originally named as
Arkansas Tobacco Control Board); Wes Ward, in his official capacity as secretary
of the Arkansas Department of Agriculture (originally named as Arkansas
Department of Agriculture); Matthew Marsh, in his official capacity as chair of the
Arkansas State Plant Board (originally named as Arkansas State Plant Board)
Defendants - Appellants
------------------------------
American Trade Association for Cannabis and Hemp
Amicus on Behalf of Appellant(s)
Hemp Industries Association
Amicus on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: September 24, 2024
Filed: June 24, 2025
____________
Before COLLOTON, Chief Judge, LOKEN and KOBES, Circuit Judges.
____________

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KOBES, Circuit Judge.
Arkansas Act 629 made much of Arkansas’s previously legal hemp industry
illegal. A coalition of affected businesses (Bio Gen) sued state officers in their
official capacities (collectively, Arkansas), alleging that Act 629 is unconstitutional.
The district court granted Bio Gen’s motion for a preliminary injunction and denied
Arkansas’s motion to dismiss the Governor and the Attorney General. We reverse.
I.
A.
The Agriculture Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat.
4490, 4908–14, 5018 (2018), (codified at 7 U.S.C. §§ 1639o–1639s) (2018 Farm
Bill),1 legalizes hemp at the federal level. See § 1639o(1) (defining hemp); see also
2018 Farm Bill § 12619 (codified at 21 U.S.C. § 802(16)(B)(i)) (exempting hemp
from the definition of “marihuana” in the federal Controlled Substances Act). States
may take primary regulatory authority over hemp production after they apply for and
receive permission from the United States Department of Agriculture. § 1639p.
Two clauses define the contours of this federal-state relationship. First, the
anti-preemption clause:
Nothing in this subsection [(relating to state submitted plans)] preempts
or limits any law of a State or Indian tribe that—
(i) regulates the production of hemp; and
(ii) is more stringent than this subchapter.
7 U.S.C. § 1639p(a)(3)(A). Second, the anti-preemption clause is subject to an
express preemption clause:
1 All citations to Title VII of the United States Code, unless otherwise noted,
are to the provisions as amended by the 2018 Farm Bill § 10113.

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(a) RULE OF CONSTRUCTION.—Nothing in this title or an
amendment made by this title prohibits the interstate commerce of
hemp (as defined in section 297A of the Agricultural Marketing Act of
1946 (as added by section 10113)) or hemp products.
(b) TRANSPORTATION OF HEMP AND HEMP PRODUCTS.—No
State or Indian Tribe shall prohibit the transportation or shipment of
hemp or hemp products produced in accordance with the Agricultural
Marketing Act of 1946 (as added by section 10113) through the State
or the territory of the Indian Tribe, as applicable.
2018 Farm Bill § 10114.
Arkansas applied for and received USDA approval to assume primary
regulatory authority over in-state hemp production. See USDA, Status of State and
Tribal Hemp Production Plans for USDA Approval,
https://www.ams.usda.gov/rules-regulations/hemp/state-and-tribal-plan-review
(last visited June 18, 2025). In 2019, the state legislature enacted the approved plan
into state law. See 2019 Ark. Acts 504.
B.
In 2023, Arkansas Governor Sarah Huckabee Sanders signed Act 629 into
law, criminalizing many previously legal hemp products. Act 629 narrows the scope
of legal hemp production and distribution by lowering the legal limit of delta-9 tetra-
hydro-cannabinol (THC) concentration2 and carving out any substance explicitly
2 Specifically, § 2 changes the denominator of the 0.3 percent delta-9 THC
concentration calculation from (a) the whole plant or product on a dry weight basis
to (b) only the hemp-derived cannabidiol (CBD) measured within the plant or
product. Compare Ark. Code Ann. § 2-15-503(5) (2022), with Ark. Code Ann. § 2-
15-503(5) (as amended by Act 629 § 2); see also Act 629 § 6 (stating the
concentration of delta-9 THC is as measured “in the hemp-derived [CBD].”
(emphasis added)).

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identified in Arkansas’s Uniform Controlled Substances Act. § 2. Act 629
correspondingly expands the scope of illegal marijuana by adding to Arkansas’s
Uniform Controlled Substances Act, all THC products with “more than three-tenths
of one percent (0.3%) of delta-9 [THC] in the hemp-derived [CBD]” and several
other THC-like compounds which are illegal regardless of concentration. § 5
(emphasis added); see also § 6.
Act 629 has two more notable features. First, § 7 contains a savings clause
related to how Arkansas’s new, more restrictive, Uniform Controlled Substances Act
interfaces with interstate commerce:
(d) This section [of Arkansas’s Uniform Controlled Substances Act
relating to marijuana] does not prohibit the continuous transportation
through Arkansas of the plant Cannabis sativa L., and any part of that
plant, including the seeds thereof and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers, whether
growing or not, with a delta-9 tetrahydrocannabinol concentration of
not more than three-tenths percent (0.3%) on a dry weight basis,
produced in accordance with 7 U.S.C. § 1639o et seq.
(amending Ark. Code Ann. § 5-64-215 (concerning “additional substances” on the
Arkansas Uniform Controlled Substances Act)).
Second, Act 629 includes a complete set of alternative secondary provisions
which becomes effective only if the Arkansas Attorney General certifies that a court
has enjoined the primary set of provisions.3 Act 629 § 17. The text of this
certification clause, as signed by Governor Sanders, says that §§ 2–5 are the primary
provisions, and §§ 6–14 are the alternative provisions. During the codification
process, the Arkansas Code Revision Commission decided § 17’s original text was
a scrivener’s error. See Ark. Code Ann. § 1-2-303(d)(1)(E). So, the Revision
Commission changed the text of § 17 and codified it to read that §§ 2–7 are the
3 No certification has occurred.

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primary provisions and §§ 8–16 are the alternative provisions. See A.C.R.C. Notes
to Ark. Code Ann. § 5-64-101 (2024).
C.
Bio Gen sued Arkansas’s Governor, Attorney General, prosecuting attorneys,
and other officers in their official capacities, seeking to enjoin Act 629 because, they
allege, it violates the Supremacy Clause, the Due Process Clause, the Takings
Clause, and the Commerce Clause of the United States Constitution.
The district court denied Arkansas’s motion to dismiss the Governor and
Attorney General, finding that they were not entitled to sovereign immunity because
they were sufficiently connected to the enforcement of Act 629 to make them proper
defendants under Ex parte Young, 209 U.S. 123, 157 (1908). After considering the
Dataphase factors, the court also entered an order preliminarily enjoining the state
officials from enforcing Act 629. The court concluded that Bio Gen was likely to
succeed on the merits of its Supremacy Clause claim because the 2018 Farm Bill
likely preempted Act 629 and its due process claim because Act 629 was likely void
for vagueness. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th
Cir. 1981) (en banc).
II.
“Our review of a preliminary injunction is layered: we apply clear error to fact
findings, de novo review to legal conclusions, and abuse of discretion to the ultimate
decision to grant the injunction.” Tumey v. Mycroft AI, Inc., 27 F.4th 657, 665 (8th
Cir. 2022). “A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008); see also Dataphase, 640 F.2d at 113. When seeking to enjoin the
implementation of a state statute, the plaintiff must show “more than just a ‘fair

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chance’ that it will succeed on the merits.” Planned Parenthood Minn., N.D., S.D.
v. Rounds, 530 F.3d 724, 731–32 (8th Cir. 2008) (en banc). It must show that it “is
likely to prevail on the merits.” Id. at 732 (quoting Doran v. Salem Inn, Inc., 422
U.S. 922, 931 (1975)).
A.
1.
We first consider whether the 2018 Farm Bill expressly preempts Act 629.
“In determining the meaning of an express pre-emption provision, we apply no
presumption against pre-emption, and we ‘focus on the plain wording of the clause,
which necessarily contains the best evidence of Congress’ pre-emptive intent.’”
Watson v. Air Methods Corp., 870 F.3d 812, 817 (8th Cir. 2017) (cleaned up)
(quoting Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 125 (2016)).
The plain meaning of § 10114 shows Congress intended to forbid Arkansas
from prohibiting the transportation or shipment through Arkansas of hemp legally
produced in another state as allowed by the 2018 Farm Bill. The plain text of
Act 629 would do exactly that. See §§ 2–6. So we must decide whether the savings
clause prevents Act 629 from contravening Congress’s express preemption.
i.
Bio Gen argues that the savings clause, as written and signed into law, is not
in effect. It argues that the Revision Commission exceeded its authority by making
“change[s] in the substance or meaning of any provision of the Arkansas Code or
any act of the General Assembly.” Ark. Code Ann. § 1-2-303(d)(1) (flush
language). Bio Gen claims that by changing the cross references in § 17, the
Revision Commission changed the substance of Act 629.

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Arkansas responds that the Revision Commission validly exercised its
authority to correct “manifest errors in refences to laws and other documents.” Ark.
Code Ann. § 1-2-303(d)(1)(D). Specifically, the Revision Commission’s
codification notes identify that House Amendment 1 to Act 629 added two new
sections (§§ 4–5) shifting every subsequent section back two sections, which
includes the savings clause shifting from § 5 to § 7. See S.B. 358, H.R. Amend. 1,
94th Gen. Assemb., Reg. Sess. (Ark. 2023). Arkansas maintains that the legislature
always intended for the savings clause to be a part of the primary set of provisions,
not the secondary provisions requiring certification by the Attorney General to be
effective. It was only by a scrivener’s error that House Amendment 1 did not update
the cross reference in what eventually became § 17.4
Under Arkansas law, the text as codified controls unless the Revision
Commission exceeded its authority—then the text as enacted controls. Porter v.
Ark. Dep’t of Health & Hum. Servs., 286 S.W.3d 686, 691–92 (Ark. 2008). Because
“there is no state supreme court case directly on point, our role is to predict how the
state supreme court would rule if faced with the same issue before us.” Church v.
Missouri, 913 F.3d 736, 745 (8th Cir. 2019) (cleaned up).
We predict that the Arkansas Supreme Court would hold that the savings
clause is in effect because the actions of the Revision Commission did not amount
to a “change in the substance or meaning of any provision of the Arkansas Code or
any act of the General Assembly.” Ark. Code Ann. § 1-2-303(d)(1) (flush
language). The action here is consistent with prior cross reference corrections. See
Vincent C. Henderson, II, The Creation of the Arkansas Code of 1987 Annotated, 11
U. Ark. Little Rock L. J. 21, 36 n.67 (1988) (explaining a correction to a scrivener’s
error with cross references to another session law). And the Revision Commission’s
actions here are not like other times where the Arkansas Supreme Court held that
revisions changed the substance or meaning. See Ortho-McNeil-Janssen Pharms.,
4 Subsequent Senate Amendments to Act 629 updated some cross references,
but did not update the references in § 17. See S.B. 358, S. Amend. 1, 94th Gen.
Assemb., Reg. Sess. (Ark. 2023).

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Inc. v. State, 432 S.W.3d 563, 573–74 (Ark. 2014) (rejecting the Revision
Commission’s splitting of a subsection “into two separate stand-alone provisions-
subsections”); Porter v. Ark. Dep’t of Health & Hum. Servs., 286 S.W.3d 686, 691–
92 (Ark. 2008) (rejecting the Revision Commission’s removal of the word “not”);
Harrell v. State, 2012 Ark. 421, 421 (2012) (switching the order of interjectory
clauses).
Bio Gen’s argument would make much of the Revision Commission’s
corrective authority surplusage. Underlying Bio Gen’s argument is that the
“substance or meaning” is the facial meaning of the text of an act. This argument
would subsume the Revision Commission’s authority to correct any of the mistakes
it is otherwise authorized to correct under Ark. Code Ann. § 1-2-303(d)(1).
Arkansas law permits the Revision Commission to correct “manifest errors in
internal reference numbers” and we believe that the Arkansas Supreme Court would
find that’s what the Commission did here. Ark. Code Ann. § 1-2-303(d)(1)(E); see
also Lindsay Mfg. Co. v. Hartford Accident & Indem. Co., 118 F.3d 1263, 1267–69
(8th Cir. 1997) (analyzing a novel question of state law using the state Supreme
Court’s rules of construction).
ii.
Having decided that the savings clause is in effect, we next consider whether
it prevents Act 629 from contravening Congress’s express preemption. Act 629
carves out the “continuous transportation through Arkansas” of hemp from
Arkansas’s Controlled Substances Act. § 7. The district court found the term
“continuous transportation” ambiguous because it is unclear if Act 629 would
“subject” an out of state teamster “to criminal liability when stopping for gas or
staying overnight before reaching the final destination outside of Arkansas.” So, it
concluded “Arkansas law criminalizes hemp-derived products without an effective
exemption for interstate commerce.”

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But “continuous transportation” as used in § 7 is well-defined in federal
constitutional case law. The United States Supreme Court has said that a “temporary
pause” does not remove a shipment from continuous interstate commerce: as long
as there is a “practical continuity of movement” the goods remain in the stream of
interstate transportation. Walling v. Jacksonville Paper Co., 317 U.S. 564, 568
(1943). Similarly, we have said that a shipment with a “temporary stopover” is
continuous. Century Indem. Co. v. Carlson, 133 F.3d 591, 599 (8th Cir. 1998). And
we need not decide the outer edges of “continuous transportation” in this facial
challenge to Act 629.
We predict the Arkansas Supreme Court would adopt our understanding of
the phrase “continuous transportation.” Any more of a restrictive understanding
would mean that Act 629 would violate the 2018 Farm Bill’s Express Preemption
Clause. So, we predict the Arkansas Supreme Court would interpret “continuous
transportation” consistent with our federal constitutional case law to avoid
interpreting Act 629 in a way that would contravene the scope of Congress’s express
preemption. See Booker v. State, 984 S.W.2d 16, 21 (Ark. 1998) (“The first and
most important rule of statutory interpretation is that a statute is presumed
constitutional and all doubts are resolved in favor of constitutionality.”).
Because § 7 is not ambiguous, it saves Act 629 and Bio Gen cannot show that
it is likely to succeed on its claim that § 10114 of the 2018 Farm Bill expressly
preempts Act 629.
2.
Bio Gen also argues that Act 629 conflicts with the 2018 Farm Bill’s purpose
of legalizing hemp production. A state statute is conflict preempted if it “stands as
an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress.” WinRed, Inc. v. Ellison, 59 F.4th 934, 944 (8th Cir. 2023) (quoting
Arizona v. United States, 567 U.S. 387, 399 (2012)). To decide if the state statute
presents an obstacle, we must first determine Congress’s intent. E.g., R.J. Reynolds

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Tobacco Co. v. City of Edina, 60 F.4th 1170, 1178 (8th Cir. 2021) (per curiam). If
Congress’s intent cannot support Bio Gen’s position, we don’t continue the analysis.
See id. (terminating the analysis when the court determined the challenger’s
interpretation of Congress’s intent was wrong). To decipher Congress’s intent, we
“consider the statute itself and any regulations enacted pursuant to the statute’s
authority.” In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Pracs. Litig., 621
F.3d 781, 792 (8th Cir. 2010) (citation omitted). And because this case “implicates
the States’ traditional use of [their] police power, we must assume that the [2018
Farm Bill] does not preempt that authority unless it was the ‘clear and manifest
purpose of Congress.’” R.J. Reynolds Tobacco Co., 60 F.4th at 1178 (quoting Altria
Grp., Inc. v. Good, 555 U.S. 70, 77 (2008)).
The text of the 2018 Farm Bill shows only that Congress wanted to facilitate
state legalization of hemp, if a state wants to. Congress allows states to legalize
hemp by removing the biggest hurdle—federal criminalization. 2018 Farm Bill
§ 12619. Congress then created a system for states to apply for and receive primary
regulatory authority over in-state hemp production. See 7 U.S.C. §§ 1639p, 1639q.
Congress requires only that states maintain certain practices and procedures and
certify that they are able to carry out those practices and procedures. See § 1639p.
And to ensure other states do not become a hurdle to an in-state hemp industry (if
the state chooses to legalize hemp), the 2018 Farm Bill prevents other states from
interfering with the interstate commerce of hemp. See 2018 Farm Bill § 10114(b).
The text does not support Bio Gen’s claim that Congress intended to
“federally protect[] hemp” and coercively mandate nationwide legality. States may
obtain primary regulatory authority over hemp production. And with that primary
regulatory authority, states may “regulate[] the production of hemp” in any manner
“more stringent than [the 2018 Farm Bill].” 7 U.S.C. § 1639p(a)(3)(A). We would
expect a different statute if Congress intended to mandate nationwide legalization—
for example an express preemption clause explicitly displacing state authority. Cf.
29 U.S.C. § 1144(a) (declaring federal ERISA law “shall supersede any and all State
laws insofar as they may now or hereafter relate to any employee benefit plan”).

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Instead, just because states may legalize hemp under the 2018 Farm Bill does not
mean they must.
Nor does Congress facilitating state legalization of hemp mean, as Bio Gen
argues, that the states must use the federal definition of hemp. Bio Gen concedes
that the regulatory result of Act 629 is permissible but argues that the means of
achieving it by changing the definition of hemp is not. There is no support for this
argument in the text or structure of the 2018 Farm Bill. See Aurora Dairy Corp.,
621 F.3d at 792. This argument also fails under its own terms. Act 629 does use the
same definition—where relevant. It uses the federal definition of hemp wherever
Act 629’s effects might conflict with 2018 Farm Bill’s effects. See, e.g., Act 629
§ 7 (spelling out the federal definition of hemp for the savings clause instead of
incorporating Act 629 § 2’s definition).
Because the text and structure do not support Bio Gen’s conception of
Congress’s intent for the 2018 Farm Bill, Bio Gen’s arguments for conflict
preemption are unsupported, and we do not continue our analysis.
B.
We also conclude Act 629 is not unconstitutionally vague and the district
court abused its discretion when it issued a preliminary injunction based on the
statute being void for vagueness. The Government violates the Due Process clause
when it takes “away someone’s life, liberty, or property under a criminal law so
vague that it fails to give ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement.” Johnson v. United States, 576
U.S. 591, 595 (2015). Fair notice is lacking where the statute “forbids or requires
the doing of an act in terms so vague that persons of common intelligence must
necessarily guess at its meaning and differ as to its application.” Stephenson v.
Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1308 (8th Cir. 1997) (cleaned up)
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

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The district court found several terms in the criminal provisions of Act 629
unconstitutionally vague, including, as relevant here: “continuous transportation,”
“synthetic substance,” and “psychoactive substances.” The term “continuous
transportation” is not ambiguous, let alone vague, as discussed above.
Neither are the terms “synthetic substance” or “psychoactive substances.”
Synthetic substance is defined by the exhaustive list within Ark. Code Ann. § 5-64-
215(a)(5) (as amended by Act 629 § 6), which also gives sufficient meaning to the
term “psychoactive substances.” See, e.g., Cir. City Stores v. Adams, 532 U.S. 105,
138 (2001) (Souter, J., dissenting) (“Like those other courts, this Court sees the
sequence as an occasion to apply the interpretive maxim of ejusdem generis, that is,
when specific terms are followed by a general one, the latter is meant to cover only
examples of the same sort as the preceding specifics.”). Because the statute gives
sufficient notice of the proscribed activity and does not invite arbitrary enforcement,
it is not unconstitutionally vague. United States v. Birbragher, 603 F.3d 478, 488–
89 (8th Cir. 2010).
III.
Finally, we conclude that the Governor and the Attorney General are entitled
to sovereign immunity because neither has a sufficient connection to the
enforcement of Act 629 to fall within the Ex parte Young exception to sovereign
immunity.
We review questions of sovereign immunity de novo. Church, 913 F.3d at
742. States generally enjoy sovereign immunity in federal courts from suits brought
by citizens of other states and their own citizens. See U.S. Const. amend. XI; Hans
v. Louisiana, 134 U.S. 1 (1890). Claims against state officials acting in their official
capacities are considered claims against the State and therefore subject to sovereign
immunity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Ex parte
Young permits some actions for prospective injunctive relief against state officials
acting in their official capacities, so long as the official has “some connection with

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the enforcement” of the challenged law. Ex parte Young, 209 U.S. at 157–59;
Monroe v. Ark. St. Univ., 495 F.3d 591, 594 (8th Cir. 2007).
For a sufficient connection to the enforcement of the challenged law, an
officer must have “methods of enforcement” for the challenged law at its disposal.
Church, 913 F.3d at 749. The method of enforcement can arise out of “the general
law” or be “specially created by the act itself.” Ex parte Young, 209 U.S. at 157. It
need not be a primary authority to enforce the challenged law. E.g., Mo. Prot. &
Advoc. Servs. v. Carnahan, 499 F.3d 803 (8th Cir. 2007). But plaintiffs must identify
a method of enforcement that the officer has the authority to wield. See, e.g.,
Calzone v. Hawley, 866 F.3d 866, 870 (8th Cir. 2017) (enjoining the attorney general
would not prevent the complained vehicle inspections by highway patrol); Digit.
Recognition Network, Inc., 803 F.3d 952, 960–64 (8th Cir. 2015) (analyzing Citizens
for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006)) (the Nebraska governor
“may direct the attorney general to file suit”); Church, 913 F.3d at 749–51
(appointing members to the Missouri State Public Defenders commission is an
insufficient connection to the enforcement mechanism relating alleged violations of
the Sixth Amendment right to adequate representation).
Turning first to the Governor, the district court held that she was a proper Ex
parte Young defendant because she “has a responsibility as chief executive for the
enforcement of the criminal laws of the state, which are implicated here.” But this
general take care responsibility is not a sufficiently specific method of enforcement.
Only local prosecuting attorneys can institute criminal suits under Act 629. See Ark.
Const. amend. XXI, §§ 1, 20. Bio Gen has not identified the specific actions the
Governor could take that link her to the criminal enforcement of Act 629, such as
the ability to direct subordinates to institute suit. See Citizens for Equal Prot., 455
F.3d at 864, abrogated on other grounds, Obergefell v. Hodges, 576 U.S. 677
(2015). So this “general executive responsibility is an insufficient connection to the
enforcement of [this] statute” and cannot support an Ex parte Young claim. Calzone,
866 F.3d at 870 (citing Fitts v. McGhee, 172 U.S. 516, 530 (1899)).

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Bio Gen argues that the Governor’s connection to the enforcement of Act 629
arises from her “control and direction” over the three administrative agencies
responsible for permitting and licensing under the statutory scheme that Act 629
amends. But Bio Gen has not identified the specific actions the Governor could take
that link her to the administrative enforcement of Act 629. Bio Gen misunderstands
the phrase “the general law” in Ex parte Young. 209 U.S. at 157. In our modern
case law, it does not mean general principles of law alone can provide a requisite
connection to the enforcement of Act 629, but merely delineates where the
enforcement mechanism that provides the connection can be located—either within
the complained act or elsewhere in the law. See id. (“The fact that the state officer,
by virtue of his office, has some connection with the enforcement of the act, is the
important and material fact, and whether it arises out of the general law, or is
specially created by the act itself, is not material so long as it exists.”); see also
Church, 913 F.3d at 749 (stating that prior “decisions mean that a governor’s
general-enforcement authority is ‘some connection’ if that authority gives the
governor methods of enforcement”).
Bio Gen also argues that the Governor is sufficiently connected to the
enforcement of Act 629 because she is required by § 10 to assist one of the
agencies—Arkansas Tobacco Control (ATC)—in its enforcement efforts. Standing
alone, the requirement to assist ATC in the exercise of ATC’s enforcement
mechanism is not an enforcement mechanism for the Governor. See Church, 913
F.3d at 749 (holding a similar statutory obligation was “insufficient”). The
Governor’s responsibility under Act 629 is inert until ATC sets its enforcement
mechanism in motion. So, it is not the Governor’s enforcement mechanism but
ATC’s enforcement mechanism. See Calzone, 866 F.3d at 870 (while the attorney
general can aid prosecutors in their duties “Calzone has pointed to no authority,
however, suggesting that the attorney general has any role in causing” the
complained injury (emphasis added)).
Next, the district court held the Attorney General was a proper Ex parte Young
defendant because he “has a specific role in Act 629,” citing his role under Act 629

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§ 17 whereby certain provisions become effective only when the attorney general
certifies to the legislature that other provisions of Act 629 are being enjoined. This
certification is a ministerial task relating to the implementation of Act 629—not an
act enforcing Act 629 against noncompliant persons. See Balogh v. Lombardi, 816
F.3d 536, 546 (8th Cir. 2016) (“Selection of the execution team constitutes
implementation of the statute in an administrative or ministerial sense and is not
analogous to enforcing the statute’s non-disclosure provision through a civil or
criminal prosecution.”); see also Church, 913 F.3d at 750. Because the certification
role is not an enforcement mechanism, the Attorney General does not fall within the
Ex parte Young exception either.
IV.
The preliminary injunction is vacated, the order denying the motion to dismiss
the Governor and Attorney General is reversed, and the case is remanded for
proceedings consistent with this opinion.
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