The American Center for Law and Justice and 74 Members of Congress:
Here, amici make the following arguments. First, amici argue that the district court was correct in determining that the “Section 1501 of the PPACA is unconstitutional because it exceeds Congress’s Article I authority.” In support, they write that the individual mandate (1) “exceeds the boundaries of Congress’s Commerce Clause power,” and (2) that “[u]pholding the individual mandate would effectively confer upon Congress ‘a plenary police power’ . . . over all individual economic decisions and places Americans’ economic liberty at risk.”
Second, amici argue that, “Because Section 1501 is not severable from the remainder of the of the PPACA, the entire PPACA is invalid.”
The American Legislative Exchange Council:
The American Legislative Exchange Council makes the following arguments. First, that the “individual mandate exceeds Congress[’s] authority under the Commerce Clause, as informed by core principles of federalism,” because: (1) “Core principles of federalism constrain Congress’s Commerce Clause authority, and deny the federal government a general police power”; and (2) “[u]pholding the individual mandate as a valid exercise of the Commerce power would upset the federal-State balance and effectively grant Congress a plenary police power.”
Second, that the “individual mandate exceeds Congress[’s] authority under the Necessary and Proper Clause, as informed by core principles of federalism,” because: (1) “In exercising authority under the Necessary and Proper Clause, Congress must give proper account to ‘state interests’”; and (2) the individual mandate “fails to account for state interests.”
Finally, that “[u]pholding the individual mandate would ‘displace state policy choices’ and stifle the states’ constitutional role as laboratories of democracy.”
The Catholic Medical Association, et al.:
The Catholic Medical Association argues that the “Act and its non-neutral individual mandate violate the Free Exercise Clause by imposing an ‘Abortion Premium Mandate’ without regard to religious objection.”
The Family Research Council:
In its brief, the Family Research Council addresses the severability issue at length. First, it argues that “the modern severability doctrine is a two-step inquiry examining Congress’s intent.” In support, the Council argues: (1) that Free Enterprise Fund “restated severability as a two-step inquiry focused on congressional intent in codifying a ‘legislative bargain’”; (2) that this “appeal turns on whether the ‘legislative bargain’ intended by Congress can be achieved if Section 1501 is invalid”; and (3) that “Supreme Court instruction regarding statutory purposes, judicial doubt, and presumptions are essential to the instant appeal.”
Second, it argues that “[t]his inquiry incorporates three principles unanimously adopted by the Supreme Court in the 2006 Ayotte Case.”
Third, that the “text of the ACA requires holding Section 1501 nonseverable,” because: (1) “The lack of a severability clause weakens the presumption of severability,” (2) “Congress’s declaration that Section 1501 is essential to ACA achieving Congress[’s] purpose is an expression of congressional intent,” and (3) the “canon against surplusage requires this Court to give effect to Congress’s finding of the individual mandate’s necessity.”
Fourth, the Council argues that the court “must at a minimum hold specific provisions of the ACA nonseverable from Section 1501.” The Council writes that the “ACA’s text requires, and the Government concedes, that Sections 1001 and 1201 cannot be severed from Section 1501,” and the “ACA’s Medicaid expansion cannot be severed from Section 1501.” Also, the Council argues, “Various additional sections cannot be severed from Section 1501,” including “the ‘Employer Mandate’ requiring all employers with 50 or more employees to provide federally approved forms of healthcare insurance, and subjecting non-complying employers to a draconian per-employee penalty,” and the CLASS Act. Finally, the Council argues, “Beyond these, Congress’s clear purpose for ACA would be frustrated unless all ACA provisions burdening the insurance industry are held nonseverable from Section 1501.”
The Justice and Freedom Fund:
The Justice and Freedom Fund makes three primary arguments. First, that “[n]either the Commerce Clause nor the Necessary and Proper Clause can salvage the perverse ‘necessity’ Congress itself created.” Second, that the “individual mandate is improper because it erodes individual liberties at the core of American freedom.” Finally, that the “district court correctly struck down the entire Act in order to protect the doctrine of separation of powers as mandated by the Constitution.”
The Landmark Legal Foundation:
The Landmark Legal Foundation’s brief makes two arguments. First, that the “PPACA’s individual insurance mandate is an unprecedented and unconstitutional police power impermissible under either the Commerce Clause or the Necessary and Proper Clause.” Second, that “Section 5000A of the PPACA establishes an unconstitutional tax.”
The Minnesota legislators and North Carolina legislative leaders:
Here, amici makes the following arguments. First, amici argue that the “Affordable Care Act is unconstitutionally vague and indefinite.” In support, amici writes: (1) that the “ACA’s ambiguity renders it illegitimate under Spending Clause jurisprudence, which requires that federal conditions be clear and definite enough to be contractually valid and enforceable”; (2) that the “ACA’s ambiguity leaves states unable to knowingly and voluntarily consent to its conditions, and its vagueness is aggravated by the vast discretion and virtual blank check it gives to federal officials to implement and waive major provisions”; (3) that the “ACA’s costs are extremely unpredictable, further preventing states from being able to voluntarily and knowingly consent”; (4) that the “ACA’s complexity accentuates its vagueness”; and (5) that the “ACA’s ambiguity and violation of states’ reasonable expectations make its pressure more impermissibly coercive.”
Second, amici argue that the “individual mandate cannot be justified under a cost-shifting rationale, and exceeds Congress’s power under the Commerce Clause.”
The South Carolina Chamber of Commerce:
Here, amici argues: (1) that the “parliamentary tactics employed to secure the Act’s adoption prevented enacting any of its provisions without each of the others,” thus leaving the plaintiffs “entitled to the relief granted”; (2) that the “Act unconstitutionally commandeers state legislatures and executive authorities and renders accountability to the electorate impossible”; and (3) that the “Act infringes on a constitutionally-protected attribute of the states’ residual sovereignty by explicitly promising individual tax credits directly to members of a state’s electorate if and only if the state establishes an exchange under Section 1311.”
The Washington Legal Foundation and Constitutional Law Scholars:
Here, amici make two arguments. First, amici argue that the “individual mandate is not authorized by Congress’s powers under the Commerce Clause” because (1) “[e]xisting Commerce Clause Precedents do not give Congress the power to regulate mere inactivity,” and (2) “the status of being uninsured is not an economic activity.”
Second, amici argues that the “individual mandate is not authorized by the necessary and proper clause,” because it is neither necessary nor proper. Amici relies on three of the Comstock Majority’s five factors to support this claim, arguing that (1) the “individual mandate is not backed by a long history of federal involvement,” (2) that the “individual mandate does not accommodate state interests,” and (3) that the “individual mandate is extremely broad in scope.”
House Speaker Boehner:
House Speaker Boehner argues that the “Necessary and Proper Clause does not support the individual mandate.” In support, Speaker Boehner argues that because the “mandate does not implement PPACA provisions that are valid under the Commerce Clause, it cancels the negative effects of the legitimate provisions of the PPACA.” Furthermore, “Adopting Appellant’s flawed reasoning would have negative long-term effects on the legislative process.”
CATO Institute:
The CATO Institute makes three arguments in its brief. First, CATO argues that the “individual mandate exceeds the scope of the Necessary and Proper Clause as used to execute the power to regulate interstate commerce under the ‘substantial effects’ doctrine.” Second, CATO argues that the “individual mandate cannot be justified as an ‘essential part of a broader regulatory scheme’ because Congress cannot regulate inactivity.” Finally, CATO argues that the “individual mandate constitutes a ‘commandeering of the people’ that is not ‘proper’ under the Necessary and Proper Clause.”
Docs4Patient Care, et al.:
Here, amici argue: (1) that “Appellants vastly overstate the relationship between the individual mandate and the issue of uncompensated care,” (2) that the “Appellants mischaracterize the relationship between uncompensated care and ‘commerce,’” and (3) that the “Appellants present the relationship between ‘economic’ activity and ‘commerce’ at too high a level of generality for constitutional purposes.”
Mountain States Legal Foundation:
The Mountain States Legal Foundation argues (1) that the “principle of a federal government of enumerated powers is deeply rooted in the history of the United States”; and (2) that the court should find the individual mandate unconstitutional, lest the federal government would “cease to be a government of enumerated powers.”
Physician Hospitals of America:
The Physician Hospitals of America’s brief deals exclusively with the severability issue. First, it argues that district court’s treatment of the severability issue was correct because (1) “Congress did not intend Section 1501 to be severed from PPACA’s remaining provisions,” and (2) [s]triking more than just § 1501 but not the whole statute is neither legally permissible nor even feasible.”
Second, it argues that “[d]eclaring PPACA unconstitutional as a whole is the only legally defensible decision.”
Finally, it argues that the “Government’s approach to severance is unprecedented and would create an unworkable patchwork of uncertain non-severed provisions by district and circuit.”
