AGs, governors and Boehner among amici in health care challenge

By Jessica M. Karmasek | Dec 2, 2010


PENSACOLA, Fla. (Legal Newsline) - In recent weeks, more than a dozen amicus briefs have been filed in the multi-state lawsuit against President Barack Obama's federal health care package.

Since Nov. 16, the U.S. District Court for the Northern District of Florida has received 14 friend-of-the-court briefs.

A total of 20 states are suing the federal government to stop implementation of Obama's health care law, otherwise known as the Affordable Care Act. Others, including Kansas, are talking about joining the fight.

Filed in March by outgoing Florida Attorney General Bill McCollum, the lawsuit argues that requiring individuals to purchase health insurance or face a $695 yearly penalty is unconstitutional.

However, lawyers for the Justice Department, representing the federal government, say the insurance mandate is covered by the Commerce Clause of the U.S. Constitution. The clause gives Congress the power to regulate business that crosses state borders.

A judge in Florida ruled in October that the suit could proceed. Oral arguments in the case are set for Dec. 16 in Pensacola.

* * *

Among those lending their support to the federal government, so far, are the governors of Colorado, Michigan, Pennsylvania and Washington.

The governors, fearful of the increased costs their state budgets might incur, argue the health care act needs to be upheld.

In their 20-page brief, filed Nov. 19, they write that the act is "constitutional and consistent with the principles of dual sovereignty underlying our federal form of government."

They point to their current state budgets, which they say have been "severely impacted by the spiraling costs of services and insurance and declining access to affordable care."

Their states' health care costs are "exacerbated" because many individuals without insurance often delay care until their conditions become more acute. Typically, care for a more advanced condition or disease is more expensive than primary or preventative care, they noted.

The governors also point to small business owners, who they say "also shoulder the burden of a system that cares for the uninsured in settings that do not provide the preventative or follow-up care that would reduce costs while providing better care."

The high cost of health insurance has negatively impacted economic growth in their states and their ability to "participate effectively" in interstate and international commerce, they said.

The plaintiffs in the suit, the governors say, portray the act "as a top-down initiative imposed on the states by federal fiat."

The governors contend the act "is a product of the political dynamic in the federalist system, in which the federal government properly moved to address a problem that proved beyond the reach of the states alone, building upon the previous efforts of the states as 'laboratories for social and economic experiment.'"

They also argue that the individual mandate does not infringe on state sovereignty.

To the contrary, they believe "the mandate directly serves federalism by protecting the states from costs that otherwise would be imposed on their budgets and health care systems..."

They argue that states are not coerced by the act's Medicaid provisions.

The plaintiffs in the case have argued that the health care act "creates a quantum change" in the nature of Medicaid -- recognized by the courts as a cooperative federal-state program -- that "commandeers" state officers to implement a federal program. The governors say that is "incorrect."

The expansion of Medicaid, under the act, is "an affordable and preferable alternative" to the costs their states would have faced, without any federal assistance, to underwrite health insurance for poor, childless adults or to subsidize uninsured care for such populations, the governors say.

The only alternative to national reform, the governors conclude, would be for states to continue bearing the costs of the uninsured and "categorically ineligible populations" without federal assistance.

* * *

The attorneys general of Iowa, Kentucky, Maryland, Oregon and Vermont also filed a brief in support of the federal government.

They, too, are worried about the impact on their states' budgets if the act is not upheld, but also those residents in need of health care.

They argue that, absent reform, state-level health care costs will rise "dramatically" over the next 10 years.

The attorneys general, in their 21-page Nov. 19 brief, call the act "a national solution" and say it will allow the states "to expand and improve health care access."

They argue -- contrary to the plaintiffs' assertions -- that the minimum coverage provision is "a necessary and reasonable part of Congress' overall plan for regulating the national health insurance market."

"Recognizing Congress' authority to regulate in an area of exceptional importance to the national economy is hardly the equivalent of endorsing a general federal police power," they wrote.

The act, the five attorneys general say, builds on principles of "cooperative federalism" and "dual sovereignty."

The plaintiffs, the AGs argue, have tried to turn their voluntary participation in Medicaid into an involuntary and unconstitutional mandate by saying that they cannot stop participating in a program that provides medical coverage for millions of their residents.

"The fact that Florida and the other plaintiff states are unwilling to give up the substantial benefits they receive through participation in Medicaid does not allow those states to block the expansion of the program by Congress," the attorneys general wrote.

They say the plaintiffs' position is "inconsistent with federalism" and "fundamentally undemocratic," and will no doubt draw the courts into "inherently political disputes," such as questions of appropriate levels of taxation, spending and governance.

They argue Congress is not using the power of the federal purse to force unrelated changes in state or local policy, nor is it forcing states "to give up constitutional prerogatives in exchange for engaging in lawful activity."

The minimum coverage provision, the AGs write, is "an essential ingredient" of the act's regulation of the health insurance market and "easily" falls within the limits of the Commerce Clause power.

"While reasonable people may disagree about the wisdom of a particular national policy, Congress' authority to address the health care crisis is entirely consistent with our federalist system of government," they wrote.

* * *

Meanwhile, a group of 32 U.S. Senators and newly chosen House Majority Leader John Boehner, R-Ohio, take issue with the act's individual mandate.

Both the group of senators and Boehner, both of whom support the 20 states who filed the lawsuit, fear the mandate could damage the country's governmental institutions and constitutional architecture.

The senators' 20-page brief was filed Nov. 18 by such notables as Senate Minority Leader Mitch McConnell of Kentucky; Sen. Orrin Hatch, R-Utah; Sen. Sam Brownback, R-Kansas; Sen. Kay Bailey Hutchison, R-Texas; and Sen. John McCain, R-Arizona.

"The defendants' arguments in this case threaten to undermine the remaining limits on Commerce Clause power, harming the Constitution's framework by allowing the federal government to overreach its enumerated powers and invade the legitimate province of the States," they wrote.

The Commerce Clause, the senators argue, does not authorize Congress to mandate the purchase of a particular product -- only to regulate commercial activity in which people are engaged.

"The mandate dramatically oversteps the bounds of the Commerce Power, which has always been understood as a power to regulate, and not to compel, economic activity," they wrote.

They cite findings by the Congressional Budget Office, or CBO, that in 200 years Congress has "never required people to buy any good or service as a condition of lawful residence in the United States."

To uphold the mandate, the senators argue, would "represent the boldest expansion of the Commerce Power in history."

"If Congress can use the Commerce Power to punish a decision not to engage in a private activity, on the basis that the future consequences of this choice, in the aggregate, would substantially affect interstate commerce, there is seemingly no private decision Congress could not regulate or no activity it could not force private citizens to undertake when, in the aggregate, it concludes that doing so would benefit the economy," they wrote.

Boehner, in his 17-page brief filed on Nov. 16, agreed.

"Congress' power to regulate interstate commerce does not allow it to compel passive individuals to engage in economic activity," he wrote.

The House Majority Leader also took issue with the federal government's interpretation of the Necessary and Proper Clause, fearing it would create incentives for Congress to pass "ill-conceived" or "unrealistic" statutes in the future.

"The Necessary and Proper Clause cannot be stretched to include illegitimate ends, inappropriate means, or laws that are inconsistent with or beyond the scope of the Constitution," he wrote.

The clause, he said, provides the means to implement or enforce a legitimate use of an enumerated power.

"The clause does not serve as a catch-all grant of Congressional power, that can be invoked by Congress whenever its goals (however laudable) do not match up with real-world results," Boehner wrote.

The congressman also fears the federal government's logic could lead to less electoral accountability to voters.

"The more convoluted the legislation passed by Congress, the more likely it will be that members of Congress will not be able to understand or articulate the full scope of the legislation that has been considered and enacted," he wrote.

"Consequently, members will be less able to explain the impact of the legislation to their constituents, reducing the ability of voters to hold members accountable for voting for clearly defined policies and making not only the legislative, but also the electoral process effectively dysfunctional."

Boehner concluded that the act is a "morass of requirements, many with unrealistic or conflicting goals."

The result is, he writes, "a statutory scheme which, without the mandate, will likely decrease the number of persons with health insurance, will increase costs for those who obtain insurance, and will drive the health insurance market 'into extinction.'"

* * *

Among those other notable groups filing briefs were the American Hospital Association and American Nurses Association, both of which say they are in support of Obama's health care law.

The hospital association, or AHA, represents nearly 5,000 hospitals, health care systems and networks, plus 37,000 individual members.

In its brief filed Nov. 19, the AHA writes that "while the legislation is not perfect, it would extend coverage to millions more Americans."

To undermine the act now, it argues, would be to "maintain an unacceptable status quo -- a result that is neither prudent nor compelled by the Constitution."

The nurses association, or ANA, is a D.C.-based non-profit, non-stock corporation. Founded over a century ago and with members in every state across the nation, ANA is comprised of state nurses associations and individual nurses.

In its own brief, also filed Nov. 19, the nurses group wrote that the act "is a significant achievement for the patients it serves because it ensures greater protection against losing or being denied health insurance coverage and it provides better access to primary care and to wellness and prevention programs through such aspects as minimum coverage requirements and expanded Medicaid coverage."

U.S. District Judge Roger Vinson had rejected the motions of seven states to file amicus briefs regarding the federal government's motion to dismiss four months ago.

Vinson said he would only allow those who wished to file amicus briefs to do so if they could provide a unique perspective into the case.

The plaintiff states said they are fine with that, as long as they get a chance to respond.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

More News

The Record Network