Press Release

Amicus Brief to the 11th Circuit Court of Appeals shows ObamaCare is incompatible with the Constitution’s Enumeration of Federal Powers

Amicus Brief to the 11th Circuit Court of Appeals shows ObamaCare is incompatible with the Constitution’s Enumeration of Federal Powers  

WASHINGTON, D.C. (May 17, 2011) – The American Legislative Exchange Council (ALEC) filed an amicus curiae (or “friend of the court”) brief last week representing its members and their citizens in the 50 states, in support of Plaintiffs-Appellees in the U.S. Court of Appeals case State of Florida and National Federation of Independent Business v. U.S. Department of Health and Human Services.  This landmark constitutional case filed by the Florida Attorney General’s office will decide if provisions under the Patient Protection and Affordable Care Act (ACA) are in fact unconstitutional.  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 is the only state legislative organization to submit a brief in this case.  ACA’s individual mandate is incompatible with ALEC’s state-level efforts to reform health care and secure broader coverage through market-driven, cost-effective measures that preserve individual liberty and state sovereignty.  ALEC and its members believe that such a theory of congressional authority is incompatible with the U.S. Constitution’s enumeration of federal powers, and will have profound effects on the relationship between the federal Government and the States. The individual mandate oversteps long-established boundaries between state and federal legislation, and will disrupt an array of state-level legislative initiatives regarding health care reform.  In addition, ACA’s individual mandate gives States no discretion to exempt their citizens and provide an alternate State scheme. 

The brief states, “Two longstanding principles are that the Commerce Clause must not be construed so broadly as to “‘obliterate the distinction between what is national and what is local,’” Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 310 U.S. 1, 37 (1937)), and that the Constitution reserves to the States, and denies the federal Government, a general police power. These constraints apply with particular force in areas where States have historically possessed primary regulatory authority.” 

ALEC’s brief includes 3 main arguments:

Argument 1: ALEC focuses on the federalism implications of the Government’s expansive theory of the Commerce Clause, which transgresses longstanding limits on Congress’ 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. 

The brief states, “Even eighty years after the Supreme 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.  It is particularly troubling given the Court’s discomfort with extending application of the Clause beyond ‘economic activity’.” 

Argument 2: As recently affirmed in United States v. Comstock (2010), Congress’ 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.”  Nine states (Arizona, Georgia, Idaho, Louisiana, Missouri, North Dakota, Tennessee, Utah, and Virginia) have enacted laws expressly guaranteeing their citizens the freedom to choose not to purchase health insurance; Arizona and Oklahoma have enacted constitutional amendments; and Wyoming and Florida will consider similar ballot measures in 2012. 

Argument 3: 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, 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.” State level policy solutions include: 

• ALEC’s High Risk Health Insurance Pool Model Act (35 states enacted)
• ALEC’s Health Care Sharing Ministries Freedom to Share Act (13 states enacted)
• ALEC’s Cancer Drug Donation Program Act (9 states enacted)
• ALEC’s Organ Donation Tax Deduction Act (16 states enacted)
• ALEC’s Health Care Choice Act for States (enacted in Wyoming; on governor’s desk in Georgia)
• Other ALEC efforts to ensure access for the poor, including the Patients First Medicaid Reform Act and SCHIP Anti-Crowd Out Act 

ALEC believes that the 11th Circuit Court of Appeals should affirm the judgment of the District Court in this case.  ALEC submitted one of the 50 amicus curiae to the Court of Appeals.  You can obtain a complete copy of the brief at

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