Dept. of Health and Human Services v. Florida Brief of Amicus Curiae

    No. 11-398

In The

Supreme Court of tfje ii>tate£

Department of Health and Human Services, et al.,
Petitioners,

v.

State of Florida, et al.

On Writ of Certiorari to the United States Court of 
Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, 

INC., AMERICAN CIVIL LIBERTIES UNION, AND THE 
LEADERSHIP CONFERENCE ON CIVIL 

AND HUMAN RIGHTS 
IN SUPPORT OF PETITIONERS 
(Minimum Coverage Provision)

Joshua Civin 
NAACP Legal Defense 

& Educational Fund, Inc. 
1444 I Street, NW, 10th Floor 
Washington, DC 20005

Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004

LisaM. Bornstein 
Leadership Conference 

on Civil and Human Rights 
1629 K Street, NW 
Washington, DC 20006

John Payton
Director-Counsel

Debo P. Adegbile 
Elise C. Boddie 

Counsel o f  Record 
ReNika C. Moore 
Ria A. Tabacco 
NAACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
eboddie@naacpldf.org

mailto:eboddie@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF CONTENTS........................................... i
TABLE OF AUTHORITIES................................... iii
INTERESTS OF AMICI...........................................1
SUMMARY OF THE ARGUMENT..........................3
ARGUMENT.............................................................5
I. The minimum coverage provision enhances

the ability of individuals to participate in 
the economic, social, and civic life of our na­
tion, thereby advancing equal opportunity 
and personal liberty.............................................5
A. The uninsured are more likely to

experience conditions that inhibit the 
quality of life..........................   6

B. The minimum coverage provision
promotes equal opportunity....................... 9

C. The ability to self-insure is not analo­
gous to any liberty interests recog­
nized by this Court...................................12
1. The provision imposes minimal

burdens on liberty............................  14
2. Under the Court’s Commerce

Clause jurisprudence, individuals 
must sometimes yield economic 
liberty to advance the collective 
good.....................................................16

II. The Necessary and Proper Clause further
supports the constitutionality of the 
minimum coverage provision.......................... 21



CONCLUSION



I l l

TABLE OF AUTHORITIES 
Cases

Bond u. United States, 131 S. Ct. 2355 (2011).....  13
Bryan v. Koch, 627 F.2d 612 (2d Cir, 1980)...........1
Cruzan v. Director, Missouri Department of 

Health, 497 U.S. 261 (1990).........................  14-15
Delaware v. Prouse, 440 U.S. 648 (1979)........  15-16
Employment Division v. Smith, 494 U.S. 872 

(1990)...................................................................20
Garcia v. Vanguard Car Rental USA, Inc., 540 

F.3d 1242 (11th Cir. 2008)................................  16
Gonzales v. Raich, 545 U.S. 1 (2005)........ . 18-19, 22
Griswold v. Connecticut, 381 U.S. 479 (1965)......  15
Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964).......................................  11
Hosanna-Tabor Evangelical Lutheran Church 

& School v. EEOC, No. 10-553, 556 U.S. _ _  
(2012)................................................................. 20

Jacobson v. Massachusetts, 197 U.S. 11 (1905).... 15
Katzenbach v. McClung, 379 U.S. 294 (1964)......  11
Lawrence v. Texas, 539 U.S. 558 (2003).........  11, 15
Linton v. Commissioner of Health & 

Environment, 65 F.3d 508 (6th Cir. 1995)........... 1
Lochner v. New York, 198 U.S. 45 (1905).............  13
McCulloch v. Maryland, 4 Wheat. 316 (1819).....21
Moore v. City of East Cleveland, 431 U.S. 494 

(1977)................................................................  15



IV

Mussington v. St. Luke’s-Roosevelt Hospital 
Center, 824 F. Supp. 427 (S.D.N.Y. 1993).........

NLRB v. Jones & Laughlin Steel Corp., 301 
U.S. 1 (1937)................................................. 14,

Ophthalmic Mutual Insurance Co. v. Musser, 
143 F.3d 1062 (7th Cir. 1998)...........................

Parents Involved in Community Schools v. 
Seattle School District No. 1, 551 U.S. 701 
(2007)..................................................................

Planned Parenthood of Southeastern 
Pennsylvania v. Casey, 505 U.S. 833 (1992).....

Rackley v. Board of Trustees of Orangeburg 
Regional Hospital, 238 F. Supp. 512 
(E.D.S.C. 1965)....................................................

Rochin v. California, 342 U.S. 165 (1952)............
Sabri v. United States, 541 U.S. 600 (2004).........
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir.

2011) .................................................................................

Simkins v. Moses H. Cone Memorial Hospital, 
323 F.2d 959 (4th Cir. 1963)..............................

Thomas More Law Center v. Obama, 651 F.3d 
529 (6th Cir. 2011)....................................... 16,

United States v. Comstock, 130 S. Ct. 1949 
(2010)...................................................... 21, 23-

United States v. Darby, 312 U.S. 100 (1941)........
United States v. Lee, 455 U.S. 252 (1982).......  19-
United States v. Lopez, 514 U.S. 549 (1995)........
United States v. Wrightwood Dairy Co., 315

. 1

19

16

11

15

.. 1
15
23

22

,. 1

18

■24
19

■20

23



V

U.S. 110 (1942)..................................................  23
Washington v. Glucksberg, 521 U.S. 702 

(1997)............................................................  14-15
West Coast Hotel Co. v. Parrish, 300 U.S. 379 

(1937)............................................................  13-14
Wickard v. Filburn, 317 U.S. I l l  (1942).........  16-19

Federal Statutes
Health Care and Education Reconciliation Act 

of 2010, Pub. L. No. 111-152, 124 Stat. 1029
(2010).....................................................................3

Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010).......... 3

26 U.S.C. § 5000A...................................................4
26 U.S.C. § 5000A(f)(l).........................................14
42 U.S.C. § 300gg..................................................21
42 U.S.C. § 300gg-l.................................................9
42 U.S.C. § 300gg-l(a)...........................................21
42 U.S.C. § 300gg-3(a)...........................................21
42 U.S.C. § 18091(a)(2)(A)..................................   4
42 U.S.C. § 18091(a)(2)(E)......................................8
42 U.S.C. § 18091(a)(2)(F).............................8-9, 22
42 U.S.C. § 18091(a)(2)(G)........................................7
42 U.S.C. § 18091(a)(2)(I)................................. 9, 22



V I

Court Filings
Consent Decree, Terry v. Methodist Hospital 

of Gary, Nos. H-76-373, H-77-154 (N.D. Ind.
June 8, 1979)....................................................... 1

Other Authorities
James A. Baker III Institute for Public Policy 

of Rice University, The Economic Impact of 
Uninsured Children on America (Houston,
Tex.), June 2009................................................ 7-8

Robin A. Cohen et al., Health Insurance Cov­
erage: Early Release of Estimates from the 
National Health Interview Survey, 2010 
(National Center for Health Statistics),
June 2011............................................................... 7

Jack Hadley, Sicker and Poorer: The Conse­
quences of Being Uninsured (Kaiser Family 
Foundation, Wash., D.C.), May 10, 2002.............7

Catherine Hoffman & Julia Paradise, Health 
Insurance and Access to Health in the 
United States, 1136 Annals N.Y. Acad. Sci.
149 (2008)..............................................................8

Institute of Medicine, Committee on the Con­
sequences of Uninsurance, Coverage Mat­
ters: Insurance and Health Care (2001)......  10-11

Institute of Medicine, Committee on the Con­
sequences of Uninsurance, Health Insur­
ance Is a Family Matter (2002)......................... 6-8

Kaiser Commission on Medicaid and the Un­
insured, The Uninsured: A Primer, Key 
Facts About Americans Without Health In-



surance (Kaiser Family Foundation, Wash., 
D.C.), Oct. 2007..... ......................................6-7, 10

Neil S. Siegel, Four Constitutional Limits that 
the Minimum Coverage Provision Respects,
27 Const. Comment. 591 (2011)............... ...........4

Kristen Suthers, Evaluating the Economic 
Causes and Consequences of Racial and 
Ethnic Health Disparities (American Public 
Health Association, Wash., D.C.), Nov.
2008.............................................................. 8, 10

U.N. Committee on the Elimination of Racial 
Discrimination, Consideration of Reports 
Submitted by States Parties under Article 9 
of the Convention, Concluding Observa­
tions of the Committee on the Elimination 
of Racial Discrimination, United States of 
America (May 2, 2008), available at
http:// www. state, gov/ documents/or ganizatio 
n/107361.pdf (last visited Jan. 10, 2012)

vii

10



1

INTERESTS OF AMICI1
The NAACP Legal Defense & Educational Fund, 

Inc. (LDF) is a non-profit legal organization that for 
more than seven decades has helped African Ameri­
cans secure their civil and constitutional rights. 
Throughout its history, LDF has worked to support 
and provide equal treatment and high-quality medi­
cal services, care, and opportunities to African 
Americans. E.g., Linton v. Comm’r of Health & 
Env’t, 65 F.3d 508 (6th Cir. 1995) (preservation of 
Medicaid-certified hospital and nursing home beds to 
prevent eviction of patients in favor of admitting 
more remunerative private-pay individuals); Bryan 
v. Koch, 627 F.2d 612 (2d Cir. 1980) (challenge to 
closure of municipal hospital serving inner-city resi­
dents); Simkins v. Moses H. Cone Mem’l Hosp., 323 
F.2d 959 (4th Cir. 1963) (admission of African- 
American physician to hospital staff); Mussington v, 
St. Luke’s-Roosevelt Hosp. Ctr., 824 F. Supp. 427 
(S.D.N.Y. 1993) (relocation of services from inner- 
city branch of merged hospital entity); Rackley v. Bd. 
of Trs. of Orangeburg Reg’l Hosp., 238 F. Supp. 512 
(E.D.S.C. 1965) (desegregation of hospital wards); 
Consent Decree, Terry v. Methodist Hosp. of Gary, 
Nos. H-76-373, H-77-154 (N.D. Ind. June 8, 1979) 
(planned relocation of urban hospital services from 
inner-city community). LDF has a substantial inter­

1 Pursuant to Supreme Court Rule 37.6, counsel for amici 
state that no counsel for a party authored this brief in whole or 
in part, and that no person other than amici, their members, or 
their counsel made a monetary contribution to the preparation 
or submission of this brief. The parties have filed blanket con­
sent letters with the Clerk of the Court pursuant to Supreme 
Court Rule 37.3.



2

est in this case because of its continuing commit­
ment to promoting opportunity for African Ameri­
cans, including access to affordable health insurance 
and health care.

The American Civil Liberties Union (ACLU) is a 
nationwide, nonpartisan, nonprofit organization 
with more than 500,000 members dedicated to the 
principles of liberty and equality embodied in the 
Constitution and this nation’s civil rights laws. 
Since it was founded in 1920, the ACLU has 
appeared before this Court in numerous cases, both 
as direct counsel and as amicus curiae. The ACLU 
has a substantial interest in the proper resolution of 
this case because of its potential impact on the abil­
ity of millions of uninsured Americans to participate 
more fully in the economic, political, and social life of 
the Nation.

The Leadership Conference on Civil and Human 
Rights is a diverse coalition of more than 200 
national organizations charged with promoting and 
protecting the rights of all persons in the United 
States. The Leadership Conference was founded in 
1950 by A. Philip Randolph, head of the Brotherhood 
of Sleeping Car Porters; Roy Wilkins of the NAACP; 
and Arnold Aronson, a leader of the National Jewish 
Community Relations Advisory Council. The Lead­
ership Conference works to build an America that is 
as good as its ideals, and toward this end, supports 
the authority of Congress to enact legislation, such 
as the Patient Protection and Affordable Care Act, 
which provides for the general welfare of the nation. 
Access to quality health care is a fundamental civil 
and human right, but the current system of health 
care in the United States denies this right to the



3

most vulnerable segments of society, including low- 
income families, people of color, women, seniors, and 
people with disabilities. By addressing the huge dis­
parities in both access to and quality of care, the 
Patient Protection and Affordable Care Act takes a 
momentous step toward ensuring that all Americans 
can benefit from affordable, high-quality health care.

SUMMARY OF THE ARGUMENT
In our modern, integrated, and dynamic health 

care system, personal choices have consequences 
that extend far beyond the individual. The economic 
decision to forego health insurance, therefore, is not 
neutral. Rather, such a decision, when aggregated 
across our national population, both limits the per­
sonal liberty of others to choose health insurance 
and has the effect of reinforcing harsh economic and 
social disparities that threaten our country’s democ­
ratic foundation and the cohesion of our society.

The minimum essential coverage provision of the 
Patient Protection and Affordable Care Act (“ACA” 
or “the Affordable Care Act”), Pub. L. No. 111-148, 
124 Stat. 119 (2010),2 promotes opportunity for mil­
lions of uninsured persons to participate in the life of 
our nation. It achieves this objective by making 
health insurance and, ultimately, health care itself 
more affordable. This, in turn, alleviates the severe 
financial burdens that fall on the uninsured, which 
have a disproportionate negative impact on disad­
vantaged populations. By reducing the exclusionary, 
harmful effects of the current system, the minimum

2 As amended by the Health Care and Education Recon­
ciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 
(2010).



4

coverage provision, 26 U.S.C. § 5000A -  the corner­
stone of ACA -  enables covered persons to lead 
healthier, freer, and more productive lives, thereby 
advancing the twin goals of liberty and equal oppor­
tunity. Respondents, therefore, go too far in suggest­
ing that the provision trenches on individual liberty 
in ways that require this Court to curtail federal 
power.

Amici support the position of the United States 
that the Eleventh Circuit erred in its analysis of 
Congress’s power to enact the minimum coverage 
provision under both the Commerce and Necessary 
and Proper Clauses. Pet. Br. 17-20. Congress acted 
well within its constitutional authority in seeking to 
regulate “‘economic and financial decisions about 
how and when health care is paid for, and when 
health insurance is purchased”3 in order to prevent 
the severe economic and social upheaval that occurs 
when significant portions of the national population 
are uninsured.4 See 42 U.S.C. § 18091(a)(2)(A).

Amici write separately to address the Eleventh 
Circuit’s mischaracterization of the liberty interests 
that are at stake in this case and to emphasize the 
positive role the minimum coverage provision plays 
in advancing equal opportunity. Amici additionally 
demonstrate that the Necessary and Proper Clause

3 See Neil S. Siegel, Four Constitutional Limits that the 
Minimum Coverage Provision Respects, 27 Const. Comment. 
591, 596-99 (2011) (describing economic nature of decision to 
self-insure).

4 In 2009, the number of uninsured persons totaled ap­
proximately 50 million. Pet. Br. 7.



5

supports Congress’s authority to enact the minimum 
coverage provision.

ARGUMENT
I. The minimum coverage provision enhances 

the ability of individuals to participate in 
the economic, social, and civic life of our 
nation, thereby advancing equal opportu­
nity and personal liberty.
Across our country, uninsured persons experience 

significant hardship that has a profound cumulative 
impact on our nation. Because they are less likely to 
obtain adequate, stable health care, the uninsured 
suffer many lost opportunities, which depresses both 
the quality and the longevity of their lives. These 
burdens are disproportionately borne by racial and 
ethnic minorities, lower-income persons, and other 
disadvantaged persons. For many individuals, being 
uninsured is not a choice, but rather is a consequence 
that is imposed on them due to circumstances 
largely beyond their control. See Pet. Br. 6 (“The 
coverage gaps [the uninsured] experience result for 
the most part from the high cost of insurance and 
employment changes -  not a belief that coverage is 
unnecessary.”).

Yet, although they lack steady access to health 
care, uninsured persons are not completely pre­
cluded from using medical services. Id. at 7. Un­
foreseen crises can lead to costly emergency room 
visits and hospitalizations that, while not covered by 
the uninsured, are still paid for by the health care 
system as a whole, eventually leading to higher 
insurance premiums for everyone. Id. at 7-8. By re­
quiring non-exempt individuals to bear some of the



6

cost of their otherwise uncompensated5 care, the 
minimum coverage provision has the effect of lower­
ing the cost of health insurance and making health 
care more affordable and accessible. It is an essen­
tial component of the Affordable Care Act’s compre­
hensive regulatory framework, id. at 24-32, that 
ultimately helps to protect and to improve the lives 
of uninsured persons and to reduce the severe ineq­
uities of our current system.

A. The uninsured are more likely to experi­
ence conditions that inhibit the quality 
of life.

From cradle to grave, lack of insurance can (and 
often does) result in life-inhibiting and personally 
catastrophic conditions that threaten the very core of 
a person’s ability to function. Because of the high 
cost of health care under our current system, the un­
insured must often choose between paying directly 
for health care services and other, basic life necessi­
ties. Kaiser Comm’n on Medicaid and the Unin­
sured, The Uninsured: A Primer, Key Facts About 
Americans Without Health Insurance (hereinafter 
Primer on Uninsured) (Kaiser Family Found., 
Wash., D.C.), Oct. 2007, at 9. Faced with these diffi­
cult tradeoffs, the uninsured are far more likely to 
accumulate significant debt and to experience the 
life-altering effects of severe financial hardship. See 
Inst, of Med., Comm, on the Consequences of Unin­
surance, Health Insurance Is a Family Matter (here­
inafter Family Matter) 77 (2002). Those who cannot

5 “Uncompensated care” refers to “care received by unin­
sured patients but not paid for by them or by a third party on 
their behalf.” Pet. Br. 8.



7

endure the financial burdens of non-covered health 
care services may simply decide to forego them.

It is unsurprising, therefore, that the uninsured 
have higher rates of illness, see Primer on Uninsured 
at 7-8, and suffer the effects of lost educational, em­
ployment, and other social and civic opportunities. 
Over time, this lost human capital degrades their 
lives and isolates them from the rest of the popula­
tion. As multiple studies show, those without insur­
ance often lead chaotic lives. They are less likely to 
receive preventative care for treatable illnesses, 
resulting in serious and even life-threatening condi­
tions. See Family Matter at 87-88; Jack Hadley, 
Sicker and Poorer: The Consequences of Being Unin­
sured (hereinafter Sicker and Poorer) (Kaiser Family 
Found., Wash., D.C.), May 10, 2002, at 5-9. Children 
with untreated health problems are less likely to at­
tend and to perform well in school. Family Matter at 
122-24; Sicker and Poorer at 15. Being uninsured 
also correlates with other poor educational outcomes, 
such as failing to graduate from high school or to 
enroll in college. See Robin A. Cohen et al., Health 
Insurance Coverage: Early Release of Estimates from 
the National Health Interview Survey, 2010 (herein­
after Health Insurance Coverage) (Nat’l Ctr. for 
Health Statistics), June 2011, at 4; Primer on Unin­
sured at 5. The uninsured often amass significant 
debt as a result of unforeseen medical expenses, 
leading to a downward, destabilizing financial spiral, 
including poor credit, Primer on Uninsured at 9; 
bankruptcy, 42 U.S.C. § 18091(a)(2)(G); lost wages; 
lower annual earnings, Sicker and Poorer at 13-14; 
and unemployment, James A. Baker III Inst, for 
Public Policy of Rice Univ., The Economic Impact of



8

Uninsured Children on America (Houston, Tex.), 
June 2009, at 5-6. These consequences are often 
cumulative and self-perpetuating and can create a 
vicious cycle of poor health and reduced opportunity 
that further diminishes the quality of life. See Fam­
ily Matter at 76; see also 42 U.S.C. § 18091(a)(2)(E); 
Catherine Hoffman & Julia Paradise, Health Insur­
ance and Access to Health in the United States, 1136 
Annals N.Y. Acad. Sci. 149, 150-51 (2008); Kristen 
Suthers, Evaluating the Economic Causes and Con­
sequences of Racial and Ethnic Health Disparities 
(hereinafter Racial and Ethnic Disparities) (Am. 
Pub. Health Ass’n, Wash., D.C.), Nov. 2008, at 2.

Congress reasonably concluded that lowering the 
cost of health insurance was vital to the strength 
and stability of our nation. Pet. App. 216a (Marcus, 
J., dissenting) (“Congress has wide regulatory lati­
tude to address the extent of financial risk-taking in 
the health care services market, which in its view is 
a threat to a national market.” (citations and inter­
nal quotation marks omitted)). The minimum cover­
age provision is the cornerstone of Congress’s efforts 
to reduce health insurance costs. It accomplishes 
this objective by regulating “how health care con­
sumption is financed,” Pet. Br. 17, in order to disrupt 
the cost-shifting that occurs when uninsured indi­
viduals use uncompensated care. As noted above, 
because many uninsured are unable to pay in full for 
the services they receive, medical providers shift the 
cost of their uncompensated services -  totaling $43 
billion in 2008 -  to insurers in the form of higher 
charges. Pet. App. 11a. Insurers then shift these 
costs to insured persons in the form of higher premi­
ums. Id. at lla-12a; see also 42 U.S.C.



9

§ 18091(a)(2)(F) (congressional finding that average 
premium increases for insured families by more than 
$1000 annually). By requiring individuals to pur­
chase insurance (or risk incurring a financial pen­
alty), the minimum coverage provision eliminates 
this cost-shifting problem, thereby lowering insur­
ance premiums for all. Pet. App. 11a- 12a (citing 42 
U.S.C. § 18091(a)(2)(F)).

The minimum coverage provision also helps to ef­
fectuate the guaranteed issue provision of the Act, 
42 U.S.C. § 300gg-l, which requires insurers to 
enroll all applicants. In the absence of a minimum 
coverage requirement, the guaranteed issue provi­
sion would reinforce the incentive for healthy people 
to wait until they were sick to obtain health insur­
ance. This would increase the underwriting and 
administrative costs that have historically contrib­
uted to high premiums. Congress rationally con­
cluded that such a result would frustrate its reform 
effort and included the minimum coverage provision 
to help ensure that insurance would be affordable. 
See id. § 18091(a)(2)(I). It did so based on the rec­

ognition that steady access to health care enables 
individuals to lead ordered, stable, and productive 
lives — the effects of which benefit our entire country. 
The provision enhances individual liberty to partici­
pate in and contribute to the life of our nation, 
alongside those who already have insurance.

B. The minimum coverage provision 
promotes equal opportunity.

The burdens of costly health care are not distrib­
uted evenly. Rather, they fall disproportionately on 
disadvantaged populations which are more likely to



10

experience higher rates of unemployment, to have 
jobs that do not offer health insurance, and to have 
lower incomes that put higher insurance premiums 
out of their financial reach. See Primer on Unin­
sured at 4-5.

Although more than half of all uninsured persons 
are non-Hispanic whites, Inst, of Med., Comm, on 
the Consequences of Uninsurance, Coverage Matters: 
Insurance and Health Care (hereinafter Coverage 
Matters) 12 (2001), racial minorities are “much more 
likely to be uninsured than whites.”6 Primer on Un­
insured at 5. Latinos are the most likely to be unin­
sured, followed by African Americans. Coverage 
Matters at 12. These racial and ethnic disparities 
predictably lead to higher mortality rates compared 
to the insured population. See Racial and Ethnic 
Disparities at 2. Other associated effects of being 
uninsured — including the prolonged duration of oth­
erwise treatable illnesses, depressed educational 
outcomes, and fewer employment opportunities — are 
more likely to affect racial minorities. Id. at 2-4.7

6 In a recent periodic review, the United Nations Commit­
tee on the Elimination of Racial Discrimination noted its con­
cern “that a large number of persons belonging to racial, ethnic 
and national minorities still remain without health insurance 
and face numerous obstacles to access to adequate health care 
and services.” U.N. Comm, on the Elimination of Racial Dis­
crimination, Consideration of Reports Submitted by States Par­
ties under Art. 9 of the Convention, Concluding Observations of 
the Comm, on the Elimination of Racial Discrimination, United 
States of America H 32 (May 2, 2008), available at 
http://www.state.gov/documents/organization/107361.pdf (last 
visited Jan. 10, 2012).

7 Gender is also correlated with less stable forms of insur­
ance. Although men in general are more likely to be uninsured,

http://www.state.gov/documents/organization/107361.pdf


11

By facilitating affordable health care, the mini­
mum coverage provision integrates the uninsured 
more fully into the life of our nation and helps them 
to participate on a more equal footing with the rest 
of society. The provision therefore promotes equal 
opportunity, in addition to personal liberty. See 
Lawrence v. Texas, 539 U.S. 558, 575 (2003) (observ­
ing that equal protection and “substantive guarantee 
of liberty are linked in important respects”). 
Congress’s desire to promote equal opportunity, of 
course, is not dispositive of the question presented in 
this case. But in exercising its Commerce Clause 
powers, Congress certainly may consider the impact 
such legislation will have on those who are otherwise 
disadvantaged by market distortions beyond their 
control. See, e.g., Parents Involved in Cmty. Schs. v. 
Seattle Sch. Dist. No. 1, 551 U.S. 701, 787-88 (2007) 
(Kennedy, J., concurring in part and concurring in 
judgment) (noting “the legitimate interest govern­
ment has in ensuring all people have equal opportu­
nity regardless of their race”); Katzenbach v. 
McClung, 379 U.S. 294, 299-300 (1964); Heart of At­
lanta Motel, Inc. v. United States, 379 U.S. 241, 257 
(1964).

“women are more likely to obtain coverage through individual 
policies and public programs” and, therefore, are more likely to 
experience gaps in coverage. Coverage Matters at 12. For a 
fuller discussion of the difficulties women have in obtaining 
and maintaining health insurance, see Amici Br. of National 
Women’s Law Center et al.



12

C. The ability to self-insure is not analogous 
to any liberty interests recognized by 
this Court.

In rejecting Congress’s authority to enact the 
minimum coverage provision, the court of appeals 
suggested that individual preferences to self-insure 
should override Congress’s decision to require near- 
universal8 insurance coverage. The Eleventh Circuit 
emphasized the liberty of individuals to forego 
health insurance. But it disregarded the counter­
vailing liberty interests of individuals whose access 
to health insurance will be constrained in the 
absence of such a provision due to cost-shifting from 
the uninsured to the insured. This dynamic has the 
effect of placing affordable, stable health care out of 
financial reach for many people. Pet. App. 11a (de­
scribing inability of some uninsured to purchase cov­
erage “because of higher premiums”).

Respondents abandoned their substantive due 
process claim on appeal below. Id. at 112a n.93. 
Therefore, the question whether the minimum cov­
erage provision unconstitutionally infringes their 
liberty interests was not squarely before the court of 
appeals. See id. Nonetheless, the Eleventh Circuit’s 
concerns about the provision’s effects on liberty

8 The statute contains several exemptions to the m i n i m u m  
coverage provision. These include exemptions on the basis of 
religion; for persons not lawfully present in the country; for in­
carcerated persons; for those who fail to meet certain threshold 
income requirements; for those who have short-term gaps in 
their coverage; for “hardship” cases, as determined by the 
Department of Health and Human Services; and for members 
of Native American tribes. Pet. App. 43a.



13

plainly animated its conclusion that Congress 
“departed] from commerce power norms.” Id. at 
112a. The court of appeals objected that the provi­
sion leaves persons “no choice” but “to purchase in­
surance,” which “strikes at the heart of whether 
Congress has acted within its enumerated power.” 
Id. It further concluded that Congress may only 
regulate individuals once they “actually enter the 
stream of commerce and consume health care.” Id. 
at 118a.

As this Court has recognized, structural limita­
tions on Congress’s authority can serve the impor­
tant function of protecting individuals against abuse 
of government power. See Bond u. United States, 
131 S. Ct. 2355, 2364 (2011) (“[Fjederalism protects 
the liberty of the individual from arbitrary power.”). 
The Eleventh Circuit, however, misconceived the 
liberty interests at stake in this case. While it is 
true that those who do not purchase insurance are 
subject to a tax penalty beginning in 2014, Pet. Br. 
11, this Court long ago repudiated the notion that 
private economic decisions are beyond government 
regulations designed to serve the larger good.

At bottom, the challenge to the minimum cover­
age provision echoes arguments made during the 
Lochner era about laws that purported to interfere 
with the right to contract. See Lochner v. New York, 
198 U.S. 45 (1905) (striking down state labor law es­
tablishing maximum number of hours for bakers). 
The Court has long since abandoned such a notion. 
In West Coast Hotel Co. v. Parrish, for example, the 
Court rejected a challenge to a state minimum wage 
law on substantive due process grounds. 300 U.S. 
379, 392-93 (1937) (collecting cases). The Court



14

observed the now familiar principle that the gov­
ernment may reasonably regulate private economic 
decisions to advance the public interest. Id. at 392; 
see also Washington v. Glucksberg, 521 U.S. 702, 761 
(1997) (Souter, J., concurring) (describing repudiated 
economic due process cases); NLRB v. Jones & 
Laughlin Steel Corp., 301 U.S. 1, 46 (1937) (uphold­
ing federal law, enacted under Congress’s Commerce 
power, that prohibited discharging employees based 
on union membership).

1. The provision imposes minimal burdens on 
liberty.

Although the minimum coverage provision is 
commonly described as a “mandate,” it is worth clari­
fying first that the provision does not require indi­
viduals to purchase any particular insurance product 
or service. See Pet. App. 25a-26a (citing 26 U.S.C. 
§ 5000A(f)(l)). Instead, covered persons may elect to 
pay a financial penalty that is enforced by an “offset 
[of] any tax refund owed the uninsured taxpayer.” 
Id. at 45a. Thus, the practical compulsory effect on 
an individual’s personal choice whether to buy 
insurance is minimal. For these reasons, the ability 
to self-insure is not analogous to any liberty inter­
ests that the Court has determined are constitution­
ally cognizable.

A few examples illustrate this point. Cf. Glucks­
berg, 521 U.S. at 722 (observing utility of “concrete 
examples” for determining outlines of protected 
liberty interests). The provision does not infringe on 
bodily integrity; as already mentioned, it does not 
require individuals to undergo any form of treatment 
or to use any form of health care. See Cruzan v. Dir.,



15

Mo. Dep’t of Health, 497 U.S. 261, 269-79 (1990) (dis­
cussing right of competent individual to refuse un­
wanted medical treatment); see also Rochin v. Cali­
fornia, 342 U.S. 165 (1952).9 Nor does the provision 
intrude on “personal decisions relating to marriage, 
procreation, contraception, family relationships, 
child rearing, and education,” Lawrence, 539 U.S. at 
574; involve the regulation of intimate, private rela­
tionships inside the home, id. at 567; affect marital 
privacy, Griswold v. Connecticut, 381 U.S. 479 
(1965); or implicate the right to decide whether to 
carry a pregnancy to term, Planned Parenthood of 
Se. Pa. v. Casey, 505 U.S. 833 (1992).

Finally, the provision comfortably falls within the 
ambit of other kinds of regulations imposed by 
States that require persons, under penalty of law, to 
purchase insurance. Therefore, the provision does 
not implicate the kind of liberty interest that is “ob­
jectively, ‘deeply rooted in this Nation’s history and 
tradition.’” Glucksberg, 521 U.S. at 720-21 (quoting 
Moore u. City of East Cleveland, 431 U.S. 494, 503 
(1977) (plurality opinion)). Most States, for example, 
require individuals to purchase car insurance as a 
condition of vehicle registration (presumably even if 
they never drive their car). See, e.g., Delaware v.

9 Notably, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), 
the Court repudiated the assertion that a compulsory smallpox 
vaccination was “hostile to the inherent right of every freeman 
to care for his own body and health in such way as to him 
seems best.” Id. at 26. Observing “the fundamental principle 
that persons and property are subjected to all kinds of re­
straints and burdens in order to secure the general comfort, 
health, and prosperity of the state,” id. (internal quotation 
marks omitted), the Court upheld the law on the grounds that 
it promoted public health and safety, id. at 31.



16

Prouse, 440 U.S. 648, 658-59 (1979); Garcia v. Van­
guard Car Rental USA, Inc., 540 F.3d 1242, 1247-48 
(11th Cir. 2008). Similarly, States may condition a 
professional license on obtaining malpractice insur­
ance. See, e.g., Ophthalmic Mut. Ins. Co. v. Musser, 
143 F.3d 1062 (7th Cir. 1998). Thus, as Judge Sut­
ton observed in his opinion in Thomas More Law 
Center u. Obama, the provision does little more than 
is required by States in analogous contexts. See 651 
F.3d 529, 565 (6th Cir. 2011) (Sutton, J., concurring) 
(describing State laws that require individuals to 
buy medical insurance and car insurance).

2. Under the Court’s Commerce Clause 
jurisprudence, individuals must sometimes 
yield economic liberty to advance the collec­
tive good.

The Court’s Commerce Clause cases acknowledge 
that government’s economic regulation may limit in­
dividual liberty to serve the common good. Wickard 
v. Filburn, 317 U.S. I l l  (1942), is a clear example. 
Contrary to the conclusion of the Eleventh Circuit, 
Wickard supports the authority of Congress to enact 
the minimum coverage provision under its Com­
merce Clause power. In light of the court of 
appeals’s extensive treatment of Wickard, Pet. App. 
65a-68a, 11 la-115a, and its close relationship to the 
liberty interest suggested in this case, it deserves 
close scrutiny.

In Wickard, this Court considered the constitu­
tionality of a penalty imposed on a small commercial 
farmer who produced wheat in excess of his allotted 
acreage under the federal Agricultural Adjustment 
Act. The purpose of the law was to regulate the sup­



17

ply and demand for wheat in order to prevent price 
fluctuations and to stabilize the interstate market. 
317 U.S. at 115. Wickard is significant because the 
farmer (Filburn) grew more than his quota not for 
the purpose of selling it on the interstate market, 
but for his own private consumption at home. Id. at 
114. This fact did not matter under the law, how­
ever. Any wheat grown in excess of the prescribed 
allotment was subject to penalty and did “not depend 
upon whether any part of the wheat either within or 
without the quota [was] sold or intended to be sold.” 
Id. at 119.

The court of appeals distinguished the liberty in­
terests implicated by Congress’s wheat regulation in 
Wickard on two grounds. First, Filburn was a com­
mercial farmer and, therefore, had already chosen to 
place himself “in commerce” as opposed to individu­
als here who are -  under Respondents’ view — “com­
pelled]” to enter commerce to purchase individual 
health insurance. Pet. App. 98a. Second, the court 
observed that the Agricultural Adjustment Act “did 
not require him to purchase more wheat.” Id. at 
111a. Rather, Filburn retained a number of other 
options: “He could have decided to make do with the 
amount of wheat he was allowed to grow. He could 
have redirected his efforts to agricultural endeavors 
that required less wheat. He could have even ceased 
part of his farming operations.” Id. at 11 la- 112a. In 
other words, Filburn was still free to exercise some 
choice, an option that the court of appeals concluded 
is lost as a result of the minimum coverage provi­
sion. Id. at 112a.

The Eleventh Circuit’s analysis overstates the 
significance of Filburn’s farming operation and rests



1 8

on a false characterization of the nature of the choice 
that was at issue in Wickard. Although Filburn 
technically was a commercial farmer, this Court did 
not treat the activity in question -  “cultivation of 
wheat for home consumption” — “as part of his com­
mercial farming operation.” Gonzales v. Raich, 545 
U.S. 1, 20 (2005). More important, there is no ques­
tion that Filburn could not choose to grow wheat — 
even for his own private consumption -  beyond the 
amount allotted to him under the Agricultural Ad­
justment Act. If he wanted to sell all of his pre­
scribed share, he would be required to purchase any 
additional wheat for his personal use. As with indi­
viduals who prefer to self-insure, Filburn preferred 
to grow more wheat precisely so that he could avoid 
having to buy it. Yet, as the Court expressly ac­
knowledged, the law “forc[ed] some farmers into the 
market to buy what they could provide for them­
selves.” Wickard, 317 U.S. at 129. Filburn, in other 
words, was “compelled” to enter the stream of com­
merce to purchase a product that he would have oth­
erwise chosen to cultivate himself. See Thomas More 
Law Ctr., 651 F.3d at 560-61 (Sutton, J., concurring).

To meet its objective of stabilizing the wheat 
market, Congress needed to regulate Filburn, just as 
it now needs to regulate the willfully uninsured to 
stabilize the market for health insurance and health 
care. As the Wickard Court noted, it is simply the 
nature of regulation “that it lays a restraining hand 
on the self-interest of the regulated and that advan­
tages from the regulation commonly fall to others.” 
317 U.S. at 129.10 This is a common theme of the

10 The Court further observed that these legislative choices 
“are wisely left under our system to resolution by the Congress



19

Court’s commerce cases. See United States v. Darby, 
312 U.S. 100, 114-15 (1941); Jones & Laughlin Steel, 
301 U.S. at 31-32; see also Raich, 545 U.S. 1 (con­
cluding that application of federal law that criminal­
ized possession and use of marijuana for medical 
purposes to intrastate growers and users did not vio­
late Commerce Clause).

Like the law challenged in Wickard, and as with 
other federal programs that depend on individual 
participation to be viable, the minimum coverage 
provision requires nearly all persons, subject to 
important exceptions,11 to make a financial contribu­
tion. In United States v. Lee, 455 U.S. 252 (1982), 
the Court upheld a similar financial “mandate” in 
the context of social security after factoring in the 
size and importance of the government program. 
The Court rejected an as-applied challenge to the 
constitutionality of a social security tax12 under the 
Free Exercise Clause. A member of the Old Order 
Amish challenged the mandate on the grounds that 
both contributions to the social security system and 
receipt of any benefits constitutionally infringed his 
religious beliefs. Id. at 255. Accepting the conten­
tions that “both payment and receipt of social secu­
rity benefits is forbidden by the Amish faith” and 
that “compulsory participation in the social security

under its more flexible and responsible legislative process,” 
particularly where such flexibility is needed to adapt legislation 
to the changing practical realities of our modern, integrated 
economy. 317 U.S. at 129.

11 See supra note 8.
12 Amici do not take any position on whether the minimum 

coverage provision’s financial penalty is a “tax.”



20

system interfere[d] with their free exercise rights,” 
id. at 257, the Court nonetheless concluded that the 
government’s interest “in assuring mandatory and 
continuous participation in and contribution to the 
social security system [was] very high.” Id. at 258- 
59.13 While not a case about the scope of Congress s 
Commerce power, Lee raises analogous concerns 
about the balance between individual liberty and 
government regulations designed to advance the 
common good. This Court rested its Lee decision in 
part on the role that social security played in 
“serving] the public interest by providing a compre­
hensive insurance system with a variety of benefits 
available to all participants, with costs shared by 
employers and employees.” Id. at 258. As with the 
provision challenged here, which is an essential part 
of ACA’s regulatory framework, Congress directed 
individuals to contribute financial resources on the 
ground that “mandatory participation is indispensa­
ble to the fiscal vitality of the . . . system.” Id.

These cases demonstrate that the Court need not 
privilege the economic choice of a subset of individu­
als to self-insure, while disregarding the effect such 
decisions have on the ability of persons who want 
insurance to choose it. The minimum coverage pro­

13 The Court reached this conclusion in Lee even though it 
applied heightened scrutiny. 455 U.S. at 257-60. The Court 
subsequently ruled, in Employment Division v. Smith, 494 U.S. 
872 (1990), that heightened scrutiny does not apply to claims of 
religious exemption from a neutral and generally applicable 
law. Cf. Hosanna-Tabor Evangelical Lutheran Church & Sch.
v. EEOC, No. 10-553, 556 U .S .___(2012), slip op. at 15 (Jan.
11, 2012) (discussing Smith).



21

vision’s limitations on individual liberty are fully 
consistent with the Constitution.
II. The Necessary and Proper Clause further

supports the constitutionality of the mini­
mum coverage provision.
The principle that Congress may enact laws “nec­

essary and proper” to the execution of its enumer­
ated powers has been firmly established for nearly 
200 years, McCulloch v. Maryland, 4 Wheat. 316 
(1819), and repeatedly reaffirmed by this Court as 
an essential ingredient of our constitutional system, 
including most recently in United States v. Com­
stock, 130 S. Ct. 1949 (2010). The minimum cover­
age provision easily satisfies the constitutional stan­
dards set forth in this Court’s cases interpreting the 
Necessary and Proper Clause and should be upheld 
for that reason, as well.

The minimum coverage provision does not exist 
in legislative isolation. It is part of a comprehensive 
legislative scheme and its validity under the 
Necessary and Proper Clause must be evaluated in 
light of that scheme. In particular, the minimum 
coverage provision is closely tied to two other provi­
sions of the health care law: one prohibits insurance 
companies from denying health care coverage to in­
dividuals based on pre-existing conditions or medical 
history, 42 U.S.C. §§ 300gg-l(a), 300gg-3(a), the 
other prohibits insurance companies from charging 
such individuals a higher premium, id. § 300gg. To­
gether, these provisions are designed to address a 
free rider problem that currently distorts the na­
tional health care market, increasing the cost of 
insurance and decreasing the numbers insured.



22

The authority of Congress to enact the latter two 
provisions under the Commerce Clause has not been 
seriously questioned, see Seven-Sky v. Holder, 661 
F.3d 1, 14 (D.C. Cir. 2011), and for good reason. In­
surance companies are indisputably engaged in eco­
nomic activity and that economic activity undeniably 
has a substantial effect on interstate commerce. As 
the legislative findings that were incorporated in 
ACA specifically note:

The cost of providing uncompensated care to 
the uninsured was $43,000,000,000 in 2008.
To pay for this cost, health care providers 
pass on the cost to private insurers, which 
pass on the cost to families. This cost- 
shifting increases family premiums by on av­
erage over $1,000 a year.

42 U.S.C. § 18091(a)(2)(F).
Congress further found that the minimum cover­

age provision was “essential to creating effective 
health insurance markets in which improved health 
insurance products that are guaranteed issue and do 
not exclude coverage of pre-existing conditions can 
be sold.” Id. § 18091(a)(2)(I). The provision 
“broaden[s] the health insurance risk pool to include 
healthy individuals” who might otherwise choose to 
remain uninsured or defer insurance coverage. Id. 
This expanded pool, in turn, enables insurance com­
panies to provide insurance coverage to everyone at 
lower premiums. Id. § 18091(a)(2)(F).

“[WJhere Congress has the authority to enact a 
regulation of interstate commerce, ‘it possesses every 
power needed to make the regulation effective.’” 
Raich, 545 U.S. at 36 (Scalia, J., dissenting) (quoting



23

United States v. Wrightwood Dairy Co., 315 U.S. 
110, 118-19 (1942)). That is precisely what the 
minimum coverage provision does in this case. 
Moreover, Congress is generally granted broad dis­
cretion in determining what legislation is necessary 
and proper to effectuate its enumerated powers. See 
Sabri v. United States, 541 U.S. 600, 605 (2004).

To be sure, the Necessary and Proper Clause is 
not an unlimited license for Congress to enact any 
legislation it chooses. In Comstock, Justice Kennedy 
and the majority debated about whether the link to 
an enumerated power must be one that is rationally 
conceivable or empirically rooted. But that debate 
has no relevance here. Even accepting Justice 
Kennedy’s view that “[tjhe rational basis referred to 
in the Commerce Clause context is a demonstrated 
link in fact,” 130 S. Ct. at 1967 (Kennedy J.4 concur­
ring), that “link in fact” is amply “demonstrated” by 
the legislative findings supporting enactment of the 
Affordable Care Act.

Nor does it matter for purposes of the Necessary 
and Proper Clause whether the minimum coverage 
provision is independently supported by the Com­
merce Clause, although amici believe that it is for 
the reasons stated above. See supra Part I. It is 
enough, as this Court has noted, that the provision is 
“an essential part of a larger regulation of economic 
activity, in which the regulatory scheme could be 
undercut unless the . . . activity [at issue] were regu­
lated.” United States v. Lopez, 514 U.S. 549, 561 
(1995).

Finally, in exercising its powers under the Neces­
sary and Proper Clause, Congress cannot abridge



24

fundamental rights any more than it may in the ex­
ercise of its enumerated powers. See Comstock, 130 
S. Ct. at 1957. As noted, supra Part I.C, however, 
the economic liberty interests suggested here in op­
position to the minimum coverage provision do not 
rise to that level.

CONCLUSION
For the foregoing reasons, the Court should re­

verse the judgment of the Eleventh Circuit striking 
down the minimum coverage provision.

Respectfully submitted,

John Payton 
Director-Counsel 

Debo P. Adegbile 
Elise C. Boddie 

Counsel of Record 
ReNika C. Moore 
Ria A. Tabacco 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200 
eboddie@naacpldf.org

Joshua Civin 
NAACP Legal Defense & 

Educational Fund, Inc. 
1444 I St., NW, 10th Floor 
Washington, DC 20005

mailto:eboddie@naacpldf.org


25

Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004

LisaM. Bornstein 
Leadership Conference 

on Civil and Human 
Rights

1629 K Street, NW 
Washington, DC 20006

Counsel for Amici Curiae

January 13, 2012