Press Release

ALEC Amicus Brief: ObamaCare’s Individual Mandate Fails to Account for State Interests and Displaces State Policy Choices

Contact: Kaitlyn Buss
Phone: 202-742-8526

ALEC Amicus Brief: ObamaCare’s Individual Mandate Fails to Account for State Interests and Displaces State Policy Choices

Washington, D.C. (February 14, 2012) – The American Legislative Exchange Council (ALEC) filed an amicus curiae (or “friend of the court”) brief with the U.S. Supreme Court Monday arguing that the minimum coverage provision, or individual mandate, in the Patient Protection and Affordable Care Act (ACA) is unconstitutional.  The brief was filed on behalf of ALEC’s members in the 50 states in the landmark case Department of Health and Human Services v. State of Florida and National Federation of Independent Business.  ALEC’s Freedom of Choice in Health Care Act provided, in part, the legal standing for several of the plaintiff states to pursue this action.

“ALEC comprises one-third of all legislators nationwide, so we’re in a unique position to fight this one-size-fits-all mandate that displaces the diverse array of state-based health reform efforts,” said Wisconsin State Senator Leah Vukmir, public sector chair for ALEC’s Health and Human Services Task Force. “We urge the Supreme Court to respect state sovereignty in health care by striking down this unconstitutional law.”

ALEC’s brief includes three main arguments:

Argument 1: Upholding the mandate would grant Congress a plenary police power, which exceeds Congress’s authority under the Commerce Clause.

ALEC focuses on the federalism implications of the government’s expansive theory of the Commerce Clause, which transgresses longstanding limits on Congress’s legislative authority and divests the states of their traditional role as policy innovators. The Constitution reserves to the states, and denies to the federal government, a police power. Public health and welfare is a core component of state sovereignty.

ALEC’s brief states, “Even eighty years after the Court first adopted its current broad reading of the Commerce Clause, it is telling indeed that Congress has never before seen fit—even when confronted with a World War, the Cold War, the Great Depression, recessions, oil shocks, farm crises, the savings and loan crisis, and myriad other disruptions great and small—to seek to regulate abstaining from economic activity under its Commerce power.  And it is particularly troubling in light of this Court’s expressed discomfort with extending application of the Clause beyond ‘economic activity.’”

Argument 2: The mandate fails to account for state interests, which exceeds Congress’s authority under the Necessary and Proper Clause.   

As recently affirmed in United States v. Comstock (2010), Congress’s authority can be sustained under the Necessary and Proper Clause only if (among other factors) it “properly accounts for state interests.” In its brief, ALEC contends that, unlike the civil commitment statute at issue in Comstock, “ACA’s individual mandate gives States no discretion to exempt their citizens and provide an alternate State scheme. Nor do the states retain discretion to oust the federal Government from any ‘appropriate role’ the States would ordinarily have discretion to perform.” Fourteen states have enacted laws expressly guaranteeing their citizens the freedom to choose not to purchase health insurance.

Argument 3: Upholding the individual mandate would displace state policy choices and stifle the states’ constitutional role as laboratories of democracy.

The ACA’s homogenizing federal approach will disrupt or displace market-based, cost-effective solutions that ALEC and its member legislators have long advocated in pursuing health care reform at the state and local level.

ALEC’s brief asserts, “By imposing a uniform federal mandate, the ACA not only displaces promising initiatives before they have had adequate opportunity to prove their value, but also forestalls other States from learning from, adapting, and improving upon policies with a demonstrated record of success,” and that “the importance of the State interests at stake here counsels caution, not haste, before Congress may determine that State efforts are fruitless and force a uniform federal program on unwilling States that are still experimenting with their own solutions.”

ALEC believes that the Supreme Court should affirm the judgment of the 11th Circuit Court of Appeals in this case.  ALEC submitted one of the 50 amicus curiae briefs to the 11th Circuit; and its brief was one of two cited by the majority in striking down the individual mandate.

To obtain a complete copy of ALEC’s brief to the Supreme Court, visit For a map of states that have passed ALEC’s Freedom of Choice in Health Care Act or have introduced this legislation, visit

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The American Legislative Exchange Council (ALEC) is the nation’s largest nonpartisan individual membership association of state legislators, with over 2,000 state legislators across the nation and more than 100 alumni members in Congress. ALEC’s mission is to promote free markets, limited government, individual liberty, and federalism.