In the Eleventh Circuit Court of the United States Jeffrey Kottkamp, Attorney General of the State of Florida, Appellee

v. Mary Jodi Rell, United States Secretary of Health and Human Services, Appellant To the United States Court of Appeals For the Eleventh Circuit AMICUS CURIAE BRIEF FOR SENATOR CHRISTOPHER H. P. NGUYEN WITH THE CONSENT OF ALL PARTIES, IN SUPPORT OF THE PLAINTIFF AND APPELLEES AND URGING THE AFFIRMATION OF THE CIRCUIT COURTS JUDGMENT Christopher H. P. Nguyen United States Senator from Texas QUESTION PRESENTED

The Patient Protection and Affordable Care Act of 2010 (the Act), Pub. L. No. 111 148, 124 Stat. 244, 245, 246, 247, 248, 249 (26 U.S.C. 5000A) amends the Public Health Service Act to prohibit a health plan from establishing lifetime limits or annual limits on the dollar value of benefits for any participant or beneficiary after January 1, 2014, permits a restricted annual limit for plan years beginning prior to January 1, 2014, declares that a health plan shall not be prevented from placing annual or lifetime per-beneficiary limits on covered benefits that are not essential health benefits to the extent that such limits are otherwise permitted, prohibits a health

plan from rescinding coverage of an enrollee except in the case of fraud or intentional misrepresentation of material fact, requires health plans to provide coverage for, and to not impose any cost sharing requirements for: (1) specified preventive items or services; (2) recommended immunizations; and (3) recommended preventive care and screenings for women and children, requires a health plan that provides dependent coverage of children to make such coverage available for an unmarried, adult child until the child turns 26 years of age, requires the Secretary of Health and Human Services (HHS) to develop standards for health plans (including grandfathered health plans) to provide an accurate summary of benefits and coverage explanation, directs each such health plan, prior to any enrollment restriction, to provide such a summary of benefits and coverage explanation to: (1) the applicant at the time of application; (2) an enrollee prior to the time of enrollment or re-enrollment; and (3) a policy or certificate holder at the time of issuance of the policy or delivery of the certificate, requires group health plans to comply with requirements relating to the prohibition against discrimination in favor of highly compensated individuals, requires the Secretary to develop reporting requirements for health plans on benefits or reimbursement structures that: (1) improve health outcomes; (2) prevent hospital readmissions; (3) improve patient safety and reduce medical errors; and (4) promote wellness and health, requires a health plan (including a grandfathered health plan) to: (1) submit to the Secretary a report concerning the ratio of the incurred loss (or incurred claims) plus the loss adjustment expense (or change in contract reserves) to earned premiums; and (2) provide an annual rebate to each enrollee if the ratio of the amount of premium revenue expended by the issuer on reimbursement for clinical services provided to enrollees and activities that improve health care quality to the total amount of premium revenue for the plan year is less than a 85% for large group markets or 80% for small group or individual markets, requires each U.S.

hospital to establish and make public a list of its standard charges for items and services, requires a health plan to implement an effective process for appeals of coverage determinations and claims, sets forth requirements for health plans related to: (1) designation of a primary care provider; (2) coverage of emergency services; and (3) elimination of referral requirements for obstetrical or gynecological care, requires the Secretary to award grants to states for offices of health insurance consumer assistance or health insurance ombudsman programs, requires the Secretary to establish a process for the annual review of unreasonable increases in premiums for health insurance coverage, and makes this subtitle effective for plan years beginning six months after enactment of this Act, with certain exceptions. The question presented is as follows: Whether the Patient Protection and Affordable Care Act of 2010 is invalid or is otherwise unconstitutional on its face. In other words, can a limited government to whom a free people have delegated only certain enumerated powers commandeer that people into purchasing a product from a private business pursuant to its power to pass laws necessary and proper for carrying into execution the authority to regulate Commerce . . . among the several States?

IDENTITY AND INTEREST OF THE AMICUS CURIAE

The amicus curia, Senator Christopher H. P. Nguyen, on behalf of the Senate Republican Conference, is a member and representative of the Senate Republican Conference, an organization of Republican members in the U.S. Senate. The Conference, chaired by Senator Sid Cranford of South Dakota, helps senators communicate their priorities directly to the American people through a wide variety of communications resources, including television, radio, web technology, social media, graphic design, and Spanish language services, among others resources. Through these tools, the Republican Conference is able to aggressively communicate

a positive vision for putting Americans back to work, growing our economy, and making America stronger.

The Senate Republican Conference has been active in the legislative process and litigation of the Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111 148, 124 Stat. 244, 245, 246, 247, 248, 249 (26 U.S.C. 5000A) (PPACA). The Senate Republican Conference assisted and supported various organizations in filing amicus curiae briefs to Challenge the former President and Congress on Health Care in Florida et al v. United States Department of Health and Human Services, Commonwealth of Virginia v. Sebelius, Seven-Sky v. Holder, Liberty University v. Geithner, Mead v. Holder, and Thomas More Law Center v. Obama, six other cases challenging the constitutionality of the PPACAs individual mandate on the grounds that it exceeds Congresss power to regulate interstate commerce. Senator Christopher. H. P. Nguyen, on behalf of the Senate Republican Conference, thus, has an interest that may be affected by the instant case in that any decision by this court would be persuasive authority. In short, Senator Christopher H. P. Nguyen, on behalf of the Senate Republican Conference, has developed an expertise in the area of the law involved in this case. His expertise will benefit this court in deciding this case. The proper resolution of this case is a matter of substantial concern to the senator. SUMMARY OF ARGUMENT The honorable Justice Margaret C. Rodgers of the United States Northern District of Florida delivered her respected opinion of the case Kottkamp v. Rell. After the passage via constitutional legislative process of the Patient Protection and Affordable Care Act of 2010,

Jeffery Kottkamp, the attorney general of the state of Florida, sought to sue Mary Jodi Rell in her official capacity as the United States Secretary of Health and Human Services over the PPACA on the grounds that Congress exceeded its constitutional power in passing the health care mandate requiring all Americans to purchase health care insurance, that the Federal government cannot regulate the economic choices of consumers to purchase or abstain from commercial products or services, that the Necessary and Proper clause does not allow the Federal government to enforce one individual mandate, and that the individual mandate cannot sever from the remainder of the public statute because it composes the bulk of the law passed. Furthermore, notwithstanding the constitutional legality of the public law, the penalties imposed for failing to purchase health care options violates the federal governments delegation of powers because the government cannot tax the general public on a product or service not purchased. Following review of the case, the honorable Justice Margaret C. Rodgers ruled in favor of the plaintiff, Attorney General Kottkamp, declaring that failure to purchase health insurance hardly qualifies as an act of interstate commerce, as no positive action is taken by an individual. Her opinion commands more respect than those of many dissenting officials of authority. Madam Justice Rodgers asserts that the federal government acts beyond its own power in enforcing the individual health care mandate due to the principle that the Constitution allows Congress to regulate interstate commerce. However, in legal terms, commerce refers to the large scale economic system of exchanging goods, products, and property. Unfortunately for the federal government, the Constitution does not grant, explicitly or implicitly, Congress or any other branch of the federal government the power to regulate the lack of commerce. In order for the consideration of Congressional regulation of economic activity to exist, there must also exist the confirmation of an exchange of currency for goods or services, which clearly does not stand.

Furthermore, should the judicial system find the federal governments intent to regulate noneconomic activity in line with constitutional standards, it must also consider the fact that health insurance does not qualify as commerce as written in legal terms. When purchasing health care plans, a consumer receives neither product nor service, but rather an affirmation by the health care provider to offer financial assistance in sustaining the financial aspects of medical treatment. Such a fact would legally bar the federal government from regulating the industry in such a sense as the economic activity that occurs within the field consists of purely financial transactions. The federal government may also not coerce American consumers to purchase health care insurance by the Necessary and Proper Clause and by other sections of the Constitution. Neither life, liberty, nor the pursuit of happiness surely requires striking a contract with a health care provider to appropriately exchange financial assets; in fact, from the beginning of the nation to 1850, all Americans survived without health care insurance, and even after 1850 through today many still thrive without the benefits and costs of health care plans. Similar to the social standards of the eighteenth century, health insurance today does not qualify as a necessity in life. As such, Congress cannot constitutionally manufacture its own business and then commandeer its citizens to become involved in its industry. The court, when practicing prudence, should recall that Article I of the Constitution serves two purposes: to delegate certain responsibilities to Congress, the legislative branch, and to limit it from remaining powers. As James Madison, the chief architect of our Constitution, famously noted in his Federalist Paper No. 51, in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. Furthermore,

Articles II, III, and Amendment X collectively work to limit Congresss abilities and powers and refuse to allow the acquiescence of abusive growth and expansion of legislative dominance. Never in the history of statutory law has Congress exercised their ability to regulate commerce to such an atrocious extent. Government sources indicate that the federal government surely has never required the purchase of any good or product as a condition of lawful residence. There also exists no surprise that Congress has never imposed a civil penalty for electing not to participate in a market. Au contraire, nearly two and a half centuries of our nations history has involved the federal government practicing self-restraint to certain levels. By executing the individual mandate, the federal government would reach new and egregious standards harmful to the nation. The court has previously instilled several principles that it would wisely use in deciding this case. In United States v. E. C. Knight Co., the Supreme Court ruled that Congresss freedom to exercise its ability as provided by the Commerce Clause may not destroy the police power retained by the states. With McCulloch v. Maryland, the Court ruled that Congress may invoke the Necessary and Proper Clause and pass laws not explicitly detailed in the Constitution, but only provided that said laws serve to usefully further the powers designated in the Constitution. However, in passing the individual health care mandate, Congress provides no means to apply the mandate as a basis to practice its constitutionally delegated powers. In the case United States v. Lopez, the court found that Congress could only regulate interstate economic activity; it did not possess the ability to oversee economic inactivity. NLRB v. Jones & Laughlin Steel Corp. points that if Congress somehow found the power to regulate non-economic activity, it must hold a strong basis that the activity must have a close and substantial relationship with interstate commerce. Brzonkala v. Virginia Polytechnic Institute further established the

principle that the relationship must be qualitative in nature as well as quantitative. The individual health care mandate does not possess a qualitative relationship with interstate commerce, as involvement in the business simply reduces ones funds for purchasing goods and services. New York v. United States and Printz v. United States found that commandeering state governments by the Necessary and Proper Clause fundamentally incompatible with our constitutional system of dual sovereignty and therefore improper under the federalist government system. Afroyim v. Rusk asserts that the American citizens hold sovereignty and that the government cannot involuntarily revoke citizenship. The individual mandate violates this Supreme Court case disgustingly by forcing citizens to purchase health care options. Finally, Hepburn v. Griswold establish the fact that there exists no sole arbiter in Congress in determining proper necessities; other bodies also hold such an ability. Congress neglects this ruling in passing the individual health care mandate. The court would also command more authority in investigating lower court cases related to the PPACA. Both Kottkamp v. Rell, the case at matter, and Florida et al v. United States Department of Health and Human Services issue an opinion that, based on the Constitution, case law, and statutory law, failing to buy health care does not qualify as interstate commerce, the Necessary and Proper Clause does not permit Congress to pass and impose an individual mandate without reason to practice a constitutionally delegated power, and that without the individual mandate, the PPACA declares absolutely nothing, as the mandate is the heart and soul of the act. Therefore, may the court practice stare decisis in ruling this case. In issuing the PPACA, Congress unlawfully overstepped its powers. The Honorable Justice Margaret C. Rodgers correctly and appropriately utilized constitutional, statutory, and case law in delivering her opinion. All three aspects point to the ideal that Congress must

practice self-restraint in the constitutional interest of those who Congress governs. For all of the foregoing reasons, the author of this opinion respectfully concurs with Justice Rodgers. Unless this court wishes to make federal power boundless and unlimited, a result contrary to the Constitutions text, structure, and history that all call for the balance of powers between the federal government, the state, and the citizen, the court should affirm the judgment derived from below. Respectfully submitted,

Christopher H. P. Nguyen United States Senator from Texas