Expect at least 21 [Brad now lists 25!] amicus briefs today supporting the US Government on the MCP by today’s filing deadline. Opposing briefs are due in February. Next week, we’ll look at the Medicaid coercion and severability amicus briefs (also due today). Some highlights for the briefs I’ve seen so far (I’ll update as more are filed). The Center for American Progress is compiling a complete list with short descriptions as well (link to come):
Many of the Massachusetts groups most involved in the Commonwealth’s historic 2006 health reforms have jointly authored a brief that supports the constitutionality of the minimum coverage provision under the Commerce Clause. While the Massachusetts reforms have been remarkably successful, Massachusetts’s experience with health reform demonstrates that health care and health insurance are inherently interstate activities that cannot be comprehensively regulated without federal involvement. States attempting to act on their own will face barriers such as uninsured and underinsured patients from other states, as well as federal laws such as ERISA that limit the ability of states to regulate health insurance offered within the state.
Amici: Health Care For All; Health Law Advocates; The Massachusetts Hospital Association; The Massachusetts League of Community Health Centers; the Greater Boston Interfaith Organization; and Community Catalyst. Counsel of Record: Wendy Parmet, Northeastern Law.
Reminds us that key ACA reforms include guaranteed issue and a form of community rating, both of which depend on the MCP.
Finds the MCP to respect federalism, individual liberty and state police powers. Amici include BU Law Professor Abigail Moncrieff.
Recharacterizes the MCP as an attempt to eliminate the market for self-insured health care, focusing on the peer-reviewed literature describing optimism bias, hyperbolic discounting and other factors which lead individuals to inadequately save for health care, absent insurance. I’m Counsel of Record.
Focuses on the impact on Americans aged 50-64 (ie, AARP membership not yet eligible for Medicare). Filed early, on Dec. 22. 2011.
Effort led by Abbe Gluck (Columbia), Wendy Mariner (BU) & Mark Hall (Wake Forest), signed by 104 health law scholars. Charles Fried is Counsel of Record. Gives the Court important facts about the extent and distribution of health care spending and utilization across the population and over time – for both insured and uninsured people. It also stresses the unique features of the health care and insurance market, as compared with other types of insurance or consumer goods.
State AGs in Support of the ACA (no link yet)
The AGs in Maryland, California, Iowa, Oregon and Vermont, supporting the constitutionality of the MCP.
Brief by Quinn Emanual, with Kathleen Sullivan as CoR. Adds California data to the discussion of the market failures corrected by the MCP.
Adds to the discussion with an anti-broccoli/camel’s nose argument (“A decision upholding the MCP would preserve existing limits on congressional power and need not authorize hypothetical laws requiring consumers to purchase other products”) and notes that federal public health laws have long regulated “individuals who are not presently engaged in commerce.” h/t to Brad @ ACA Litgation Blog for the brief
Pro-federalism brief supporting the MCP, with quotations from the Federalist Papers and similar sources. h/t to Brad @ ACA Litgation Blog for the brief
The health care system is not the exclusive purview of states, but has long been strongly regulated and financed by the federal government. The MCP is not a fundamental change. Also notes (as did the USG merits brief, but here in more detail) that the MCP idea came from The Heritage Foundation, and cites prior support by Gingrich, Frist and Romney, among others. Finally, the ACA builds upon the public-private health care system we have today; it is not a radical new system. h/t to Brad @ ACA Litgation Blog for the brief