Progressives States Action - Defend Health Reform: Join Legislator Amicus Brief in Support of Federal Health Reform Law

I am writing you today to ask you to join with other legislators around the country in support of an amicus brief defending the federal health reform law. We need to submit the brief next week, June 16th, so please join us today in this effort. And please pass this email onto colleagues who you think would be interested in joining the brief as well.

Sign up here to join the state legislator brief defending the federal reform law.

Clearly, the forces opposing health access for millions of Americans have not been willing to accept losing the legislative battle over health reform in Congress.

Despite the failure of ALEC and other rightwing groups to pass almost any of their anti-reform bills at the state level, rightwing state Attorneys General and others have now gone to court to supposedly speak on behalf of the states to ask activist judges to strike down the federal health reform law.

We intend to send the message that state legislators around the country SUPPORT health reform and that those state Attorneys General do not speak for the states.

The respected Constitutional Accountability Center in Washington, D.C. has agreed to work with Progressive States Network and State Legislators for Health Reform to submit an amicus brief to federal court on behalf of state legislators to argue that the health reform is in the interests of state governments and its constituents.

The outline of arguments and draft of the brief that will be submitted next week in court is below. Please read it and join the brief.

Sign up here to join the state legislator brief defending the federal reform law.

If you have additional questions on the brief, please email Elizabeth Wydra of the Constitutional Accountability Center at or myself at

Please see below for the outline of the brief.


Nathan Newman
Executive Director
Progressive States Network

Introduction to Amicus Brief

Our Constitution creates a vibrant system of cooperative federalism that gives broad power to the federal government to act in circumstances where a national approach is necessary or preferable, while reserving a significant role for the States to craft innovative policy solutions that showcase the diversity of America's people, places, and ideas.  Far from violating the principles of federalism in our Constitution, the Patient Protection and Affordable Care Act (ACA or "the Act") reflects the federal-state partnership at its best.  Amici State Legislators are working hard in their States to implement the Act in a timely and effective manner.

While the pending challenge to the constitutionality of the Act has been brought by several Attorneys General purporting to represent the people of their respective States and the interests of the States in general, the State legislators appearing herein as amici do not agree with the plaintiffs' approach or their position.  Health care reform was imperative for Americans, as well as their State and local governments.  The ever-rising costs of and limited access to insurance coverage and health care have severely stressed the budgets of both State governments and American families, and literally cause tens of thousands of deaths each year.

The plaintiffs claim that the ACA "greatly alters the federal-State relationship, to the detriment of the Plaintiff States, with respect to Medicaid programs, their insurance regulatory role, and healthcare coverage generally."  Amended Complaint ¶ 42.  As a threshold matter, the federal reform act does not ignore or denigrate the important partnership role played by the States in protecting the health and security of their citizens; to the contrary, the Act capitalizes upon much of the innovation and good policy that has been modeled by State and local government. 

In addition, the plaintiffs' claim that the Act's Medicaid-related provisions are unconstitutional under the Ninth and Tenth Amendments, e.g. Am. Compl. ¶¶ 83-86, is fundamentally flawed by the fact that States continue to have the option to opt out of Medicaid and the federal government's various Medicaid requirements altogether.  The plaintiffs acknowledge that they do not want to end their participation in the federal-State Medicaid program, because to do so "would desert millions of their residents, leaving them without access to the healthcare services they have depended on for decades under Medicaid."  Am. Compl. ¶ 66.  This is absolutely true-residents in Amici State Legislators states have come to appreciate and rely upon Medicaid.  But the Constitution allows the federal government to structure or condition federal funds and programs in a certain way, allowing States to choose whether to participate and accept those conditions, or not.  It is well-established that "Congress may attach conditions on the receipt of federal funds."  South Dakota v. Dole, 483 U.S. 203, 206 (1987).  The plaintiffs' Medicaid and other federalism claims appear to seek a judicial "do-over" on the Act, trying to get this Court to craft a health care reform bill that is more to the plaintiffs' liking.  That is an effort that belongs in the political arena, not the courts.  State leaders must now choose whether to comply with the new Medicaid requirements, or opt out of the program altogether. 

Similarly, the plaintiffs allege that the Act's establishment of insurance exchanges and other insurance regulatory mechanisms violates the Ninth and Tenth Amendments.  Am. Compl. ¶ 88.  Specifically, the plaintiffs claim that State authority over insurance regulation is displaced because, "[i]f a State does not satisfy federal requirements to progress toward creation of an intrastate insurance exchange between now and the end of 2010, or chooses not to operate an exchange, the federal government (or its contractor) will establish and administer an intrastate exchange within that State."  Am. Compl. ¶ 44.

The Constitution's federalism provisions sanction rather than prohibit placing these questions of political leadership and priorities to State officials and the residents they serve.  The people's representatives in Congress and President Barack Obama, supported by Amici State Legislators, have passed a health care reform law that expands coverage, cuts costs, ensures health insurance security for millions of Americans, and sets up a federal-State partnership that sets a minimum national floor of coverage and protection while allowing States significant options-including whether to continue in the Medicaid program, whether and in what manner a state insurance exchange should be established, and even whether to seek a waiver from the federal program and try to build a better health reform system.  As Justice O'Connor explained in New York v. United States, where Congress encourages State regulation or activity but does not expressly compel it, "state governments remain responsive to the local electorate's preferences; state officials remain accountable to the people."  505 U.S. 144, 168 (1992).  The plaintiffs should not be allowed to avoid political accountability to their constituents by asking the Court to do what they can't-or won't-do through the legislative and political processes.

Because Amici State Legislators believe that the Patient Protection and Affordable Care Act is within Congress's constitutional powers and is fully consonant with the federalism provisions of the Constitution, Amici support the Defendants' Motion to Dismiss and respectfully ask that it be granted.

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