IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

Pensacola Division 

STATE OF FLORIDA, by and through )

BILL McCOLLUM, et al. )

)

Plaintiffs, )

)

v. ) Case No.: 3:10-cv-91-RV/EMT 

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants. )

__________________________________________)

BRIEF OF HOUSE REPUBLICAN LEADER JOHN BOEHNER AS AMICUS

CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY 

JUDGMENT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... ii

INTEREST OF AMICUS ..............................................................................................................4

ARGUMENT..................................................................................................................................6

I. The Necessary and Proper Clause Does Not Support the 

Individual Mandate. ..............................................................................................6

A. The Mandate Is Not “Necessary” and It Does Not 

Implement a Legitimate Exercise of an Enumerated Power........................8

B. Adopting Defendants' Flawed Reasoning Would Have 

Harmful Long-Term Effects on the Legislative Process. ..........................13

CONCLUSION ............................................................................................................................15

CERTIFICATE OF SERVICE ..................................................................................................16

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TABLE OF AUTHORITIES

CASES

Gonzales v. Raich, 545 U.S. 1 (2005)..................................................................... 7, 11, 12

McCulloch v. Maryland, 17 U.S. (Wheat.) 316 (1819) ...................................................... 7

Thomas More Law Center v. Obama, No. 10-CV-11156, Mem. Op. (E.D. Mich. Oct. 7, 

2010)................................................................................................................................ 8

United States v. Comstock, 130 S. Ct. 1949 (2010).............................................. 6, 7, 8, 13

United States v. Darby, 321 U.S. 100 (1941) ................................................................... 11

United States v. S.E. Underwriters Ass’n, 322 U.S. 533 (1944)......................................... 9

Virginia v. Sebelius, No. 3:10-cv-188, Mem. Op. (Aug. 2, 2010)............................ 6, 7, 13

Wickard v. Filburn, 317 U.S. 111 (1942) ......................................................................... 11

STATUTES

Patient Protection and Affordable Care Act (“PPACA” or “Act”), Pub. L. No. 111-148 

(2010)

§ 1001.................................................................................................................................. 8

§ 10106(a)........................................................................................................................... 4

§ 1201.................................................................................................................................. 8

§ 1501(a)(2)(A)................................................................................................................... 4

U.S. CONST. art. I, § 8, cl. 18. ............................................................................................. 6

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OTHER AUTHORITIES

Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health 

Insurance (Aug. 1994) .............................................................................................. 6, 12

Health Reform in the 21st Century: Insurance Market Reforms: Hearing Before the H. 

Comm. On Ways and Means, 111th Cong. (2009)......................................................... 4

Janet Adamy, Health Insurers Plan Hikes, Wall St. Journal (Sept. 7, 2010)..................... 4

Stephen G. Breyer, Making Our Democracy Work: A Judge’s View 83 (Knopf 2010)... 13

THE FEDERALIST No. 10 (James Madison) ....................................................................... 13

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INTEREST OF AMICUS

Amicus House Republican Leader John Boehner, as a member of the leadership of 

the United States House of Representatives, amicus has a keen interest in the 

constitutional issues at stake in this case, as well as the long-term effects that the Court’s 

decision on summary judgment may have on the legislative process, notwithstanding any 

opposition amicus may have voiced to the Patient Protection and Affordable Care Act 

(hereinafter “PPACA” or “Act”), Pub. L. No. 111-148 (2010), on policy grounds. 

All members of Congress, including amicus, have taken oaths to uphold the 

Constitution of the United States. While our constitutional system is built on both 

vertical and horizontal checks and balances, members of Congress have an independent 

responsibility to uphold the Constitution and to ensure that the Legislative Branch stays 

within the bounds of the powers afforded it by the Constitution. In particular, amicus

believes his perspective as a member of congressional leadership will be helpful to the 

Court in determining whether or not the Individual Mandate falls within Congress’s 

power under the Necessary and Proper Clause. Additionally, amicus is particularly wellplaced to discuss the negative effects that Defendants’ position would have on the 

legislative process. 

Defendants have argued that the PPACA’s reforms of the insurance market –

which fall within Congress’s power to regulate interstate commerce – “could not function

effectively” without the Individual Mandate. See Defendants’ Memorandum in Support 

of Motion for Summary Judgment, at 19 [hereinafter “Defs. MSJ”]. Indeed, Defendants 

state that, without the Individual Mandate, these reforms would “inexorably drive [the 

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health insurance] market into extinction.” Defendants’ Memorandum in Support of 

Motion to Dismiss, at 46 [hereinafter “Defs. MTD”] (quoting Health Reform in the 21st

Century: Insurance Market Reforms: Hearing Before the H. Comm. On Ways and 

Means, 111th Cong. (2009), at 13 (Uwe Reinhardt, Ph.D., Princeton University)) 

(alteration in original). Consequently, Defendants argue that the Mandate is “essential,” 

and that Congress may employ “any means” reasonably adapted to “achieving [the] key 

reforms” found elsewhere in the Act. Defs. MSJ at 23-24. 

Defendants’ position is quite remarkable. She largely admits that, without the 

Individual Mandate, the Act is dysfunctional and will have serious negative 

consequences. These include, inter alia, (1) creating disincentives for private persons to 

obtain insurance, Defs. MSJ at 21 (“these new insurance regulations ... would increase 

the incentives for individuals to make an economic and financial decision to forego 

health insurance coverage’ ...”) (quoting PPACA §§ 1501(a)(2)(A), 10106(a)); (2) 

increasing premium costs, Defs. MSJ at 21 (stating that without the Individual Mandate, 

the PPACA “would drive up premiums, or reduce coverage, or both, for those who 

remained in the insured pool.”);

1

and (3) ultimately bankrupting the insurance industry, 

Defs. MTD at 46 (the PPACA would “inexorably drive the health insurance market into

extinction”) (alternations and quotations omitted). 

The Individual Mandate does not implement or facilitate enforcement of the Act’s 

insurance industry reforms. Nonetheless, Defendants argue that the Mandate is necessary 

 

1

In fact, premium costs are already significantly increasing as a result of the Act. See, e.g., Janet Adamy, 

Health Insurers Plan Hikes, Wall St. Journal (Sept. 7, 2010), available at 

http://online.wsj.com/article/SB10001424052748703720004575478200948908976.html (last visited Sept. 

8, 2010)

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to avoid the Act’s negative effects, including those mentioned above. In short, 

Defendants acknowledge that there is a gap between the goals of the statute and its realworld results, and argue that the Necessary and Proper Clause allows Congress to bridge 

that gap with an otherwise unconstitutional Individual Mandate. 

The Necessary and Proper Clause gives Congress the means to implement one or 

more of its enumerated powers. See United States v. Comstock, 130 S. Ct. 1949, 1956 

(2010) (“we look to see whether the statute constitutes a means that is rationally related 

to the implementation of a constitutionally enumerated power”). It does not, however, 

give Congress an all-purpose power to fill the gaps left by other legislation. Indeed, a 

federal court has already found that the Individual Mandate extends beyond the 

commerce power’s “current high watermark.” Virginia v. Sebelius, No. 3:10-cv-188, 

Mem. Op. at 18 (Aug. 2, 2010). 

If adopted by the court, this interpretation of the Necessary and Proper Clause 

would create incentives for Congress to pass ill-conceived or unrealistic statutes. As 

House Republican Leader, amicus is uniquely positioned to make this argument and to 

explain why the Court should reject Defendants’ position. 

ARGUMENT

I. The Necessary and Proper Clause Does Not Support the Individual 

Mandate

The Constitution gives Congress the power to “make all Laws which shall be 

necessary and proper for carrying into Execution” its enumerated powers. U.S. CONST. 

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art. I, § 8, cl. 18. Thus, the Necessary and Proper Clause gives Congress the means to 

implement a proper exercise of a constitutionally enumerated power. Comstock, 130 S. 

Ct. at 1956. It does not, however, give Congress an untethered ability to exceed its 

constitutional limitations. 

As Chief Justice Marshall explained in McCulloch v. Maryland: “Let the end be 

legitimate, let it be within the scope of the constitution, and all means which are 

appropriate, which are plainly adapted to that end, which are not prohibited, but consist 

with the letter and spirit of the constitution, are constitutional.” 17 U.S. (Wheat.) 316, 

421 (1819); see also Comstock, 130 S. Ct. at 1956 (quoting McCulloch, 17 U.S. at 421). 

These limits on Congressional power “are not merely hortatory.” Gonzales v. Raich, 545 

U.S. 1, 39 (2005) (Scalia, J. concurring). The Necessary and Proper Clause cannot be

stretched to include illegitimate ends, inappropriate means, or laws that are inconsistent 

with or beyond the scope of the Constitution. 

The Individual Mandate itself is not a permissible exercise of an enumerated 

power. Congress’s power to regulate interstate commerce does not allow it to compel

passive individuals to engage in economic activity. Indeed, in more than 220 years since 

Congress first convened, it has never even attempted to claim such power until now. See 

Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health 

Insurance, at 1 (Aug. 1994) (Congress has “never required people to buy any good or 

service as a condition of lawful residence in the United States”); see also Virginia v. 

Sebelius, Mem. Op. at 18 (the Individual Mandate goes “beyond” the Commerce 

Clause’s “current high watermark”); id. at 31 (“No reported case from any federal 

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appellate court has extended the Commerce Clause ... to include the regulation of a 

person’s decision not to purchase a product ....”) (emphasis added); Thomas More Law 

Center v. Obama, No. 10-CV-11156, Mem. Op. at 15 (E.D. Mich. Oct. 7, 2010) (“The 

[Supreme] Court has never needed to address the activity/inactivity distinction advanced 

by plaintiffs because in every Commerce Clause case presented thus far, there has been 

some sort of activity”). 

Nor does the Mandate carry out a legitimate end in support of the other reforms 

found in the Act. To the contrary, Defendants’ reliance on the Necessary and Proper 

Clause here is best seen for what it is: an attempt to circumvent the limitations imposed 

on Congress by the Constitution. 

A. The Mandate Is Not “Necessary” and It Does Not Implement a 

Legitimate Exercise of an Enumerated Power.

The Supreme Court has made clear that the Necessary and Proper Clause does not 

grant Congress the legislative authority to enact a statute unless “the statute constitutes a 

means that is rationally related to the implementation of a constitutionally enumerated 

power.” Comstock, 130 S. Ct. at 1956. Congress may rely on the Necessary and Proper 

Clause only where the statute is “legitimately predicated on an enumerated power,” the 

relationship between the two is not “too attenuated,” and the provision is not “too 

sweeping in its scope.” Id. at 1963. 

The Individual Mandate is not a “means” to carry out some other provision of the 

PPACA – it is a means and an end unto itself. The goal is universal coverage, and the 

Individual Mandate seeks to achieve this goal by requiring virtually all Americans to 

obtain and maintain a Congressionally-approved level of health insurance. The 

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Necessary and Proper Clause is not, however, an independent source of authority for 

achieving Congress’s policy goals. It simply provides the means to implement or enforce 

a legitimate use of an enumerated power.

Defendants have argued that the Individual Mandate is necessary – indeed, 

“essential” – to the PPACA’s reforms of the insurance market. As Defendants have

noted in this case, “the Act will bar insurers from refusing to cover individuals with preexisting medical conditions, and from setting eligibility rules based on health status, 

medical condition, claims experience, or medical history.” Defs. MTD at 45. The 

PPACA’s insurance-market reforms include, among others, the elimination of lifetime 

benefit limits and pre-existing condition exclusions (PPACA §§ 1001, 1201); mandatory 

coverage of certain preventive services (PPACA § 1001); extension of parental health 

coverage to unmarried adult children under 26 (PPACA § 1001); and various cost control 

measures (PPACA § 1001).

Those sections of the Act do fall within Congress’s power, pursuant to the 

Commerce Clause, to regulate the interstate health insurance market. See United States v. 

S.E. Underwriters Ass’n, 322 U.S. 533, 553 (1944). However, the Individual Mandate 

does not implement or enforce those sections. Defendants nowhere suggests that,

without the Mandate, those sections would somehow become legally ineffective. 

Instead, Defendants have made a series of stunning admissions about the

PPACA’s “reforms.” According to Defendants, without the Mandate the Act will have 

serious negative consequences – including higher premium costs – that will harm 

consumers and will ultimately drive the health insurance market “into extinction.” See 

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Defs. MTD at 45-46. Defendants themselves have pointed to the dysfunctional nature of 

the PPACA:

 “Congress found that, absent the minimum coverage provision, these new 

regulations would encourage more individuals to forego insurance, aggravating 

cost shifting and increasing premiums.” Defs. MTD at 45 (emphasis added). 

 Without the Individual Mandate, “healthy individuals would have had 

overwhelmingly strong incentives ... to forego insurance coverage....” Defs. MSJ 

at 24.

 Without the Individual Mandate, the incentives created by the PPACA “would 

increase the costs of uncompensated care and the premiums for the insurance 

pool,” Defs. MTD at 45-46, and could also “decrease coverage ... for those who 

remained in the insured pool,” Defs. MSJ at 21. 

 These pressures would “inexorably drive the health insurance market into 

extinction.” Defs. MTD at 46 (emphasis added, internal quotations and alterations 

omitted). 

According to Defendants, the “[PPACA’s] reforms of the insurance market ... 

could not function” without the Individual Mandate. Defs. MTD at 44-45; see also 

Defendants’ Reply in Support of Motion to Dismiss, at 14 [hereinafter “Defs. Reply Br.”] 

(“defendants’ position” is that the Individual Mandate “is essential to the private market 

insurance reforms in the [PPACA]”) (emphasis in original). In short, Defendants have

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argued that the Individual Mandate is “necessary” to avoid the negative consequences of 

the PPACA itself. 

Defendants’ argument relies on a misunderstanding of both the Necessary and 

Proper Clause and the limits of Congressional power. The consequences that Defendants 

point to are quite serious – in fact, Defendants highlight some of the reasons why amicus

voted against the Act. These consequences do not, however, bring the Individual

Mandate within the scope of the Necessary and Proper Clause. 

As noted above, the Necessary and Proper Clause gives Congress the means to 

implement a proper exercise of its powers. Thus, for example, in United States v. Darby

the Supreme Court upheld recordkeeping requirements that facilitated enforcement of 

federal fair labor standards. See 321 U.S. 100 (1941). The Court reasoned that the 

recordkeeping requirements were “incidental to those for the prescribed wages and 

hours.” Id. at 125. “[S]ince Congress may require production for interstate Commerce to 

conform to those conditions, it may require the employer, as a means of enforcing the 

valid law, to keep a record showing whether he has in fact complied with it.” Id. In a 

similar vein, the Court has upheld federal requirements that prevent evasion or 

obstruction of valid federal regulations. See, e.g., Raich, 545 U.S. 1; Wickard v. Filburn, 

317 U.S. 111 (1942). 

The Individual Mandate is fundamentally unlike these other provisions upheld by 

the Supreme Court under a Necessary and Proper analysis. The Mandate does not 

implement the PPACA’s reforms of the health insurance industry. Nor does it facilitate 

their enforcement. Those sections of the PPACA stand on their own as an exercise of 

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Congress’s commerce power, and they do not need the Mandate to be legally effective. 

In contrast to the statute in Gonzales v. Raich, the Mandate does not prevent the evasion 

or obstruction of the PPACA’s other reforms. The sections regarding “eligibility rules,” 

for example, are legally enforceable without the Individual Mandate.

In short, the Individual Mandate is not necessary for implementation or 

enforcement of the PPACA’s insurance industry reforms. Instead, Defendants claim that 

the Mandate is “essential” to avoid the consequences of those reforms: bad incentives, 

higher premiums, and ultimately the “extinction” of the insurance industry. See Defs. 

MTD at 45-46. This view fundamentally misstates the purpose and scope of the 

Necessary and Proper Clause. The Clause does not serve as a catch-all grant of 

Congressional power, that can be invoked by Congress whenever its goals (however 

laudable) do not match up with real-world results. 

Under Defendants’ logic, Congress could sidestep constitutional limitations on its 

powers any time it passes a statute with dysfunctional results. In fact, the more 

dysfunctional a statute is, the more “essential” or “necessary” the statutory “fix” would 

be. Thus, where there is a gap between Congress’ purported goal and a statute’s actual 

consequences, it would be “necessary,” and therefore constitutionally permissible, to 

bridge the gap with an otherwise unconstitutional provision like the Individual Mandate. 

The larger the “gap,” the greater the need to bridge the gap, and the greater Congress’s 

power to enact an otherwise impermissible remedy. The more harm a statute does, the 

more power Congress could assume for itself under the Necessary and Proper Clause. 

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Defendants’ reasoning is neither constitutional nor logically sound. Congress 

cannot circumvent the limits on its power by adopting statutes that are insufficient or 

unrealistic, and then relying on those failures as the basis for enacting statutory gap-fillers 

that exceed its powers under Article I. Such action is not “legitimately predicated on an 

enumerated power.”2 Comstock, 130 S. Ct. 1963. As a federal court has already noted 

in similar litigation, “[n]ever before” has the “Necessary and Proper Clause been 

extended this far.” Virginia v. Sebelius, Mem. Op. at 25. 

B. Adopting Defendants’ Flawed Reasoning Would Have 

Harmful Long-Term Effects on the Legislative Process. 

Defendants’ interpretation of the Necessary and Proper Clause would cause 

significant long-term harm to the Constitution and would encourage future Congresses to 

pass ill-conceived or poorly-drafted laws. Under their interpretation, a law would need 

only to be predicated upon a Congressional finding that it is “necessary” to alleviate the 

supposed negative effects of other legislation, effectively do away with the requirement 

that Congressional action be “legitimately predicated on an enumerated power.” 

Comstock, 130 S. Ct. 1963. That would be a significant departure from settled law, 

eliminating one of the key limits on federal power. 

 

2 Nor does the Individual Mandate survive the Supreme Court’s dictate that the provision not be 

“too sweeping in its scope.” See Comstock, 130 S.Ct. 1963. Indeed, it is difficult to imagine a 

requirement more sweeping than the Individual Mandate. A court has already found that the 

Mandate exceeds the commerce power’s “high watermark,” Virginia v. Sebelius, Mem. Op. at 18, 

and in more than 220 years Congress has “never required people to buy any good or service as a 

condition of lawful residence in the United States.” Cong. Budget Office, The Budgetary 

Treatment of an Individual Mandate to Buy Health Insurance, at 1 (Aug. 1994). The current 

Congress’s assertion of power is not merely “sweeping” – it is, as the Court has already found, 

“without prior precedent.” 10/14/10 Mem. Op., at 61. 

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As a practical matter, Defendants’ logic also invites poorly-conceived or poorlydrafted statutes. Congress could routinely enact statutes which, like the health insurance 

industry reforms discussed above, are defective or otherwise insufficient to actually meet 

Congress’s goals. By doing so, Congress could render the use of extra-constitutional 

fixes “essential.” Thus, Congress could use the Necessary and Proper Clause to 

circumvent the limits on its powers. The more frequently Congress passes defective or 

contradictory statutes, and the more harmful or insufficient those statutes are, the greater 

the power that Congress could assume for itself under the Necessary and Proper Clause.

This natural extension of Defendants’ logic could also lead to less electoral 

accountability to voters. The more convoluted the legislation passed by Congress, the 

more likely it will be that Members of Congress will not be able to understand or 

articulate the full scope of the legislation that has been considered and enacted. 

Consequently, Members will be less able to explain the impact of the legislation to their 

constituents, reducing the ability of voters to hold Members accountable for voting for 

clearly defined policies and making not only the legislative, but also the electoral process 

effectively dysfunctional. Such concerns have been contemplated in our democracy for 

more than 230 years.3 This Court has observed the importance of legislative transparency 

in the passage of new taxes in order for the public to hold its elected representatives 

 

3

See THE FEDERALIST No. 10 (James Madison): “It will be of little avail to the people, that the 

laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, 

or so incoherent that they cannot be understood; if they be repealed or revised before they are 

promulgated, or undergo such incessant changes that no man, who knows what the law is today, 

can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a 

rule, which is little known, and less fixed?” Justice Breyer makes the parallel argument that the 

transparency of judicial opinions fostering governmental accountability. See Stephen G. Breyer, 

Making Our Democracy Work: A Judge’s View 83 (Knopf 2010). 

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accountable. See 10/14/10 Mem. Op., at 26-29. Transparency is no less important outside 

the tax context.

If adopted by the Court, this interpretation of the Necessary and Proper Clause 

would create incentives for Congress to pass ill-conceived or unrealistic statutes. Indeed, 

one need look no further than Defendants’ own briefs to see the negative consequences of 

such an approach. The PPACA is a morass of requirements, many with unrealistic or 

conflicting goals. The result is a statutory scheme which, without the Mandate, will 

likely decrease the number of persons with health insurance, will increase costs for those 

who obtain insurance, and will drive the health insurance market “into extinction.” See

Defs. MTD at 45-46. Defendants’ reasoning is flawed and the court should reject any 

interpretation of the Necessary and Proper Clause that would encourage future 

Congresses to pass laws in such a deleterious manner. 

CONCLUSION

For all the foregoing reasons, amicus curiae House Republican Leader John 

Boehner respectfully requests that the Court grant Plaintiffs’ Motion for Summary 

Judgment. 

Dated November 16, 2010

Respectfully submitted,

/s/ Carrie L. Severino 

CARRIE L. SEVERINO

FLND Bar Admission Date: 11/08/2010

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District of Columbia Bar No. 982084

Chief Counsel and Policy Director

Judicial Crisis Network

113 2nd Street NE

Washington, DC 20002-7303

Telephone (616) 915-8180

Facsimile (703) 396-7817

Email: carrie@judicialnetwork.com

Counsel for Amicus Curiae

House Republican Leader John Boehner

CERTIFICATE OF SERVICE

I hereby certify that on this 16

th day of November, 2010, a copy of the foregoing 

brief was served on counsel of record for all counsel of record in this case through the 

Court’s Notice of Electronic Filing system.

/s/ Carrie L. Severino

Carrie L. Severino

Chief Counsel

Judicial Crisis Network

Counsel for Amicus Curiae

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