When a federal appeals court in Atlanta hears arguments tomorrow in the constitutional challenge to the Affordable Care Act brought by 26 states, the only advocate for the states to stand before the judges will argue against the Act. But that doesn't mean that the states are "united" against the Act in this lawsuit, as the challengers' lawyer, former George W. Bush Solicitor General Paul Clement, has suggested. While they won't be speaking in court tomorrow, 10 states and more than 150 state legislators -- many of whom are from the 26 states that brought the lawsuit -- have filed "friend of the court" briefs supporting the constitutionality of the Act and arguing that it is good for their states and constituents. Despite the Tea-Party-friendly "states' rights" rhetoric of the anti-reform plaintiffs and their claim to represent the interests of the states in general, many state leaders strongly disagree with the challengers' legal position and flawed, historically-inaccurate view of federalism.
When the drafters of our Constitution sought to create "a more perfect Union" in 1787, they created a vibrant system of federalism that gives broad power to the federal government to act in circumstances in which a national approach is necessary or preferable, while reserving a significant role for the states to craft innovative policy solutions reflecting the diversity of America's people, places, and ideas. States are considered our national laboratories of democracy, and, in fact, the states' "experiments" in health care reform support the Affordable Care Act.
As much as presidential-hopeful Mitt Romney might like to forget it, Massachusetts' health care plan -- individual mandate and all--was a model for the Affordable Care Act. Likely adding to Romney's health-care heartburn, Massachusetts' brief filed in support of the Act plainly states, "the experience of Massachusetts confirms that Congress had a rational basis to determine that free-riding, taken in aggregate, substantially affects interstate commerce; accordingly, Congress had authority under the Commerce Clause to impose the minimum coverage requirement."
Adding to Massachusetts' experience, a brief from nine other states explained to the appeals court why it is difficult for individual states to reform health care on their own and blasted the anti-reform challengers' notion that the ACA is some novel intrusion on state regulation of health care by noting that "the states and the federal government have been working together to implement healthcare policy for at least the last half-century." The federal government has been involved in the health care industry through federal programs for the poor, the Veterans Administration, and Medicare; it has regulated insurance through an alphabet-soup of programs, such as COBRA, HIPPA, and ERISA; and it has long worked in partnership with the states to provide insurance and care to the needy through Medicaid. Federal regulation is appropriate because states face spillover effects, issues of scale, and collective action problems if they try to regulate individually.
Not only is federal regulation of the health care industry nothing new, federal health care reform "was imperative for Americans, as well as for their State and local governments," as the more than 150 state legislators who filed a brief in the 11th Circuit case explained. Concerned for their states and constituents, the state legislators noted that "[t]he ever-rising costs of and limited access to insurance coverage and health care have severely stressed the budgets of State governments and American families, and literally resulted in tens of thousands of deaths each year."
In other words, contrary to the claims of the state plaintiffs who have sued over federal health care reform, many state leaders think that the Affordable Care Act is not only constitutional -- but also a great step forward for their states and their citizens. The 26 conservative state leaders who filed the lawsuit may purport to represent the interests of the states generally, but they do not. With an eye on both their constituents' best interests and the Constitution's text and history, many other state leaders have gone on record supporting Congress's authority to pass the Act and its mandate.
To be sure, the constitutional powers of the federal government are not unlimited. The Constitution establishes a national government of enumerated powers, and the states play a vital role in our federalist system. But the powers that our Nation's founders granted the federal government in the Constitution are broad and substantial. And, since the Founding, the American people have amended the Constitution to ensure that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans.
While it is highly unlikely that this perspective will be included when the lawyer for the plaintiff states argues before the 11th Circuit judges tomorrow, the judges should keep in mind that they also have before them the briefs of more than 150 state legislators from across the country and 10 states arguing that the Affordable Care Act respects state sovereignty and is an appropriate exercise of federal power. These briefs demonstrate that when it comes to states' rights and health care reform, many state leaders believe that the plaintiff-states are not right at all.
*The author and Constitutional Accountability Center represent the 154 State Legislators in Florida, et al. v. U.S. Dep't of Health & Human Services.