IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

 

STATE OF FLORIDA, by and ) 

through BILL McCOLLUM, et al., ) 

 ) 

 Plaintiffs, ) 

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

) 

UNITED STATES DEPARTMENT ) 

OF HEALTH AND HUMAN ) 

SERVICES, et al., ) 

 )

 Defendants. ) 

_________________________________ )

MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE

BY THE AMERICAN CENTER FOR LAW & JUSTICE, VARIOUS 

MEMBERS OF CONGRESS, AND THE CONSTITUTIONAL COMMITTEE TO 

CHALLENGE THE PRESIDENT & CONGRESS ON HEALTH CARE IN 

SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

AND INCORPORATED LEGAL MEMORANDUM

Pursuant to this Court’s order on amicus curiae filings, (Doc. 50), and Local Civil 

Rule 7.1, Movants, the American Center for Law and Justice (ACLJ), various Members 

of Congress, and the Constitutional Committee to Challenge the President and Congress 

on Health Care, respectfully move this Court for leave to participate as amici curiae and 

file an amici curiae brief in support of the Plaintiffs’ Motion for Summary Judgment.1/ 

 

1

/ Pursuant to Local Civil R. 7.1, counsel for amici curiae conferred with counsel 

for the parties to see whether they oppose the granting of this motion. Plaintiffs’ counsel 

and Defendants’ counsel take no position on this motion. Plaintiffs’ counsel also have 

filed a statement regarding amicus filings with this court. (Doc. 85.) 

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I. CORPORATE & FINANCIAL DISCLOSURE STATEMENT. 

 To enable the Court to evaluate possible disqualifications or recusal, counsel for 

Movants state that the ACLJ has no parents, trusts, subsidiaries, and/or affiliates that have 

issued shares or debt securities to the public. 

II. INTEREST OF MOVANTS. 

(a). Movant ACLJ is an organization dedicated to the defense of constitutional 

liberties secured by law. ACLJ attorneys have argued or participated as amicus curiae in 

numerous cases involving constitutional issues before the Supreme Court of the United 

States and lower federal courts. The ACLJ has been active in litigation concerning the 

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

(2010) (“PPACA”). The ACLJ filed an amici curiae brief on behalf of itself, Members 

of Congress, and the Constitutional Committee in Commonwealth of Virginia ex rel. 

Kenneth T. Cuccinelli, II v. Sebelius, No. 3:10-cv-00188-HEH (E.D. Va.), another case 

challenging the constitutionality of the PPACA’s individual mandate. 

The ACLJ also represents the plaintiffs in Mead v. Holder, No. 1:10-cv-00950 

(D.D.C. 2010), another case challenging the individual mandate’s constitutionality on the 

grounds that it exceeds Congress’s power to regulate interstate commerce. The ACLJ 

thus has an interest that may be affected by the instant case in that any decision by this 

Court would be persuasive authority in Mead. 

(b). Movants, Paul Broun, Robert Aderholt, Todd Akin, Rodney Alexander, 

Michele Bachmann, Spencer Bachus, Marsha Blackburn, Michael Burgess, Dan Burton, 

Eric Cantor, Jason Chaffetz, Mike Conaway, John Fleming, Virginia Foxx, Trent Franks, 

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3 

Scott Garrett, Louie Gohmert, Tom Graves, Ralph Hall, Greg Harper, Jeb Hensarling, 

Lynn Jenkins, Walter Jones, Jim Jordan, Steve King, John Kline, Doug Lamborn, Robert 

Latta, Connie Mack, Kenny Marchant, Kevin McCarthy, Tom McClintock, Cathy 

McMorris Rodgers, Jeff Miller, Jerry Moran, Pete Olson, Ron Paul, Mike Pence, Joe 

Pitts, Bill Posey, Tom Price, George Radonovich, Mike Rogers (AL), Pete Sessions, John 

Shadegg, Adrian Smith, Lamar Smith, Todd Tiahrt, Zach Wamp, Lynn Westmoreland, 

and Joe Wilson, are Members of the United States House of Representatives in the One 

Hundred Eleventh Congress.2/ They voted against the PPACA in Congress because

(among other reasons) Congress does not have the power to force people to buy 

government-approved health insurance (or to engage in any other commercial 

transaction) or pay a penalty if they fail to do so. 

A holding that Congress has the power to enact the individual mandate would be 

an unprecedented extension of federal power. Such a holding, in these Members’ view, 

would undermine the constitutional principle that the Federal government is a 

government of limited power, a principle these Members swore to uphold in taking their 

oath to defend the Constitution. The Members have a further interest in representing 

their constituents whom the individual mandate will force to buy health insurance or pay 

a penalty. 

(c). Movant, the Constitutional Committee to Challenge the President and 

Congress on Health Care, consists of over 70,000 Americans from across the country 

who oppose the individual mandate and do not want to be forced to buy insurance 

 

2

/ If this motion is granted, additional Members of Congress may join the 

proposed amici curiae brief before the time it is filed. 

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coverage. It is likely that many members of the Constitutional Committee will be forced 

to buy health insurance or pay a penalty if the individual mandate is found to be 

constitutional. 

Like the ACLJ and Members of Congress, Members of the Committee are 

dedicated to the founding principles of limited government and to the corollary precept 

that the Commerce Clause contains boundaries that Congress may not trespass, no matter 

how serious the nation’s healthcare problems. Movants believe that the PPACA’s 

individual mandate exceeds any power granted under the Commerce Clause. 

III. AN AMICI BRIEF IS DESIRABLE AND RELEVANT TO THE 

DISPOSITION OF THE CASE, AND AMICI HAVE UNIQUE 

INFORMATION OR PERSPECTIVE TO ASSIST THE COURT. 

Movant ACLJ possesses experience in constitutional law cases and seeks to 

analyze the relevant case law to demonstrate that the Court should resolve the 

constitutional issues in this case in the Plaintiffs’ favor. The additional Movants, the 

individual Members of Congress and the Constitutional Committee to Challenge the 

President and Congress on Health Care, represent a diverse group of elected officials and 

citizens who oppose the PPACA’s individual mandate. Movants, the Members of 

Congress, voted against the PPACA in Congress and believe the law to be 

unconstitutional and burdensome to the states. Therefore, Movants respectfully submit 

that their participation as amici would assist the Court in considering this case. 

Movants contend that the PPACA’s individual mandate exceeds any power 

granted under the Commerce Clause. In their brief, Movants would argue that the 

Commerce Clause does not empower Congress to coerce individual purchases merely 

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because decisions not to purchase may affect interstate commerce. Movants would argue 

that such an expansive reading of the Commerce Clause could make limitless the 

universe of commercial transactions that Congress could compel. 

Movants’ brief would confront head on the government’s argument that because 

almost all Americans will at some point need medical services, to decide not to buy 

health insurance is really to decide how to pay for the health care one will inevitably 

receive and thus to engage in commercial activity subject to congressional regulation. 

The brief would posit the following example of where the government’s reasoning leads: 

While someone who decides not to buy an automobile is not participating in the 

automobile market, because all people inevitably need to get from one place to another, 

he is participating in the broader market for transportation, a market that includes the 

automobile market. Deciding not to buy an automobile and instead relying on other 

forms of transportation is, by the government’s reasoning, engaging in economic activity 

that Congress may regulate because it is reasonable to conclude that the aggregate of 

those decisions substantially affects interstate commerce. Thus, the brief would argue, 

under the government’s reasoning, that Congress could enact a law requiring all 

Americans—even those who desire not to own an automobile—to purchase American 

automobiles or pay a penalty. If the government’s reasoning is correct, all private 

purchasing decisions would be subject to federal regulation, a notion at odds with any 

conception of limited federal government power and dangerous to Americans’ liberty. 

Movants would also argue that the individual mandate is not severable from the 

remainder of the PPACA; thus, if the individual mandate is unconstitutional, the entire 

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Act is invalid. Movants note that while an earlier version of the health care legislation 

contained a severability clause, the PPACA did not and that, as the government itself 

emphasizes, the PPACA’s remaining provisions cannot function without the individual 

mandate. These two factors lead inexorably to the conclusion that Congress would not 

have passed the PPACA without the individual mandate. 

IV. CONCLUSION. 

For the above-stated reasons, Movants respectfully request that this Court grant 

this motion and allow them to participate as amici curiae and file an amici curiae brief. 

Respectfully submitted on 

November 9, 2010, 

/s/ Edward L. White III 

 Edward L. White III 

 Florida Bar No. 893773 

 N.D. Florida Bar Member 

 AMERICAN CENTER FOR LAW

 & JUSTICE

 5068 Plymouth Road 

 Ann Arbor, Michigan 48105 

 Phone: 734-662-2984 

 Fax: 734-302-1758 

 Email: ewhite@aclj.org 

John P. Tuskey* 

Laura Hernandez* 

AMERICAN CENTER FOR LAW

 & JUSTICE

1000 Regent University Dr. 

Virginia Beach, Virginia 23464 

Phone: 757-226-2489 

Fax: 757-226-2836 

Jay Alan Sekulow* 

Colby M. May* 

Stuart J. Roth* 

AMERICAN CENTER FOR LAW

 & JUSTICE

201 Maryland Ave., NE 

Washington, DC 20002 

Phone: 202-546-8890 

Fax: 202-546-9309 

* - Not admitted in this Court 

Attorneys for Amici Curiae

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CERTIFICATE OF SERVICE 

The undersigned counsel for Movants certifies that on November 9, 2010, a true 

and correct copy of the foregoing Motion was filed electronically with this Court through 

the CM/ECF filing system. Notice of this filing will be sent to all parties for whom 

counsel has entered an appearance by operation of the Court’s CM/ECF system. 

The following counsel for the parties will receive notice of this filing through the 

Court’s CM/ECF system: 

David Boris Rivkin, Jr. drivkin@bakerlaw.com 

Lee Alfred Casey lcasey@bakerlaw.com 

Blaine H. Winship blaine.winship@myfloridalegal.com 

Katherine Jean Spohn katie.spohn@nebraska.gov 

William James Cobb, III bill.cobb@oag.state.tx.us 

Carlos Ramos-Mrosovsky cramosmrosovsky@bakerlaw.com 

Brian G. Kennedy brian.kennedy@usdoj.gov 

Eric B. Beckenhauer eric.beckenhauer@usdoj.gov 

 /s/ Edward L. White III 

 Edward L. White III 

 Florida Bar No. 893773 

 N.D. Florida Bar Member 

 AMERICAN CENTER FOR LAW

 & JUSTICE

 5068 Plymouth Road 

 Ann Arbor, Michigan 48105 

 Phone: 734-662-2984 

 Fax: 734-302-1758 

 Email: ewhite@aclj.org 

 Counsel for amici curiae

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