Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Sebelius

Filing 114

MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment by American Civil Rights Union. (Attachments: # 1 Proposed Order, # 2 Exhibit Proposed amicus brief)(Gray, Daniel)

Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Sebelius

Doc. 114

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division COMMONWEALTH OF VIRGINIA EX REL. KENNETH T. CUCCINELLI, II, in his official capacity as Attorney General of Virginia, Plaintiff, v. KATHLEEN SEBELIUS, Secretary of the Department of Health and Human Services, in her official capacity, Defendant. MOTION OF AMERICAN CIVIL RIGHTS UNION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT The American Civil Rights Union (ACRU) moves for leave to file the accompanying amicus curiae brief in support of Plaintiff's motion for summary judgment and in opposition to Defendant's motion for summary judgment. I. INTEREST OF MOVANT The American Civil Rights Union (ACRU) is a non-partisan, non-profit 501(c)(3) legal/educational policy organization dedicated to defending all constitutional rights, not just those that might be politically correct or fit a particular ideology. It was founded in 1998 by long-time policy advisor to President Reagan, and the architect of modern welfare reform, Robert B. Carleson, and since then has filed amicus curiae briefs on constitutional law issues in cases nationwide. Civil Action No. 3:10-cv-188-HEH

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Those setting the organization's policy as members of the Policy Board are former U.S. Attorney General, Edwin Meese III; former Assistant Attorney General for Civil Rights, William Bradford Reynolds; John M. Olin Distinguished Professor of Economics at George Mason University, Walter E. Williams; former Harvard University Professor, Dr. James Q. Wilson; former Ambassador Curtin Winsor, Jr.; and Dean Emeritus of the UCLA Anderson School of Management, J. Clayburn LaForce. This case is of interest to the ACRU because it seeks to ensure that the Constitutional limits to federal power are fully recognized and enforced. That includes, in regard to this case in particular, that the scope and boundaries of the Commerce Clause be fully respected and maintained, and properly applied to analysis of the constitutionality of the Patient Protection and Affordable Care Act. II. AN AMICUS CURIAE BRIEF IS DESIRABLE AND THE MATTERS ASSERTED ARE RELEVANT TO THE DISPOSITION OF THE CASE. The ACRU has long experience and developed expertise in addressing issues of constitutional law, having filed numerous amicus curiae briefs addressing such issues nationwide. See, e.g., NRA v. City of Chicago (2010); Citizens United v. Federal Election Commission (2010); Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd. (2010); Ricci v. City of New Haven (2009); District of Columbia v. Heller (2008); Boy Scouts of America v. Dale (2000). In addition to the expertise of its Policy Board, the ACRU's General Counsel, Peter Ferrara, has taken the lead in producing the organization's amicus curiae briefs, including the attached brief for this case. A graduate of Harvard Law School and Harvard College, Mr. Ferrara served in the White House Office of Policy Development under President Reagan, where his responsibilities included health policy. He also served as Associate Deputy Attorney General of

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the United States under President George H. W. Bush, and as an Associate Professor of Law at the George Mason University School of Law. He has also practiced with law firms in New York and Washington. The attached brief includes an original and unique discussion of the economic aspects of the legal issues raised by the Commerce Clause analysis of the Patient Protection and Affordable Health Care Act. It demonstrates, moreover, that alternative policies were available to the Congress that would have achieved its policy goals, yet would not transgress Constitutional bounds, as the Act the Congress passed does. The Act imposes an individual mandate on individuals not participating in interstate commerce, but its effect is not so limited. The mandate in fact compels them to participate in something that is not interstate commerce, as the attached brief demonstrates. The Commerce Clause thus provides no authorization for the individual mandate, nor does any other delegated power under the Constitution. The individual mandate, therefore, is unconstitutional. Failing to so rule would fundamentally transform the Constitution from providing for a limited government of delegated powers, to an unlimited government of unlimited powers. The ACRU submits the attached brief because of its demonstrated legal policy and public policy interest in the issues presented by this case. But the ACRU has no direct interest, financial or otherwise, in the outcome of this lawsuit. Because of this lack of direct interest, the ACRU believes it can assist the Court by providing a perspective that is distinct from that of any party. Counsel for the ACRU contacted each party in an effort to obtain consent for leave to file the attached amicus curiae brief. Counsel for Plaintiff consented to the filing of that brief. Counsel for Defendant took no position on the filing of the brief. In any event, this motion obviates the issue of any such consents.

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WHEREFORE, the ACRU respectfully requests that its motion for leave to file the attached amicus curiae brief be granted. A proposed order is attached. DATED: October 4, 2010 Respectfully Submitted, /s/___________________ Daniel M. Gray (VSB #39942) Law Offices of Daniel M. Gray, LLC 7617 Virginia Avenue Falls Church, VA 22043 703-204-0164 Fax [phone] [e-mail] Richard B. Rogers (VSB #43148) Richard B. Rogers plc 6606 Thurlton Drive Alexandria, VA 22315-2649 571-969-1727 (Fax: Please call first) [e-mail] Peter Ferrara General Counsel American Civil Rights Union 1232 Pine Hill Rd. McLean, VA 22101 703-582-8466 610-438-5721 Counsel for Amicus Curiae American Civil Rights Union

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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of October, 2010, I electronically filed the foregoing Motion for Leave to File Amicus Curiae Brief via the Court's CM/ECF system, which will send notification of such filing to the following counsel registered for electronic service: Kenneth T. Cuccinelli Earle Duncan Getchell, Jr. Charles E. James, Jr. Stephen R. McCullough Wesley Glenn Russell, Jr. OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA 900 E. Main Street Richmond, Virginia 23219 (Counsel for Plaintiff) Jonathan Holland Hambrick OFFICE OF THE U.S. ATTORNEY 600 E. Main St., Suite 1800 Richmond, Virginia 23219 (Counsel for Defendant) Erika Myers Ian Gershengorn Joel McElvain Shelia M. Leiber UNITED STATES DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH 20 Massachusetts Ave., NW Room 7332 Washington, DC 20001 (Counsel for Defendant) Matthew D. Fender Virginia L.H. Nesbitt Scott C. Oostdyk McGuire Woods LLP 901 East Cary Street Richmond, VA 23219 (Counsel for amicus Physician Hospitals of America) John P. Forest, II Stahl Zelloe PC 11350 Random Hills Road Suite 700 Fairfax, VA 22030 (Counsel for amicus Liberty Group) Angela H. France PCT Law Group, PLLC 1725 Duke Street Suite 240 Alexandria, VA 22314 (Counsel for nineteen amici) Colby M. May American Center for Law & Justice (DC) 201 Maryland Avenue NE Washington, DC 20002 (Counsel for thirty amici) Patrick M. McSweeney George W. Norris, Jr. McSweeney Crump Childress & Temple PC 11 South Twelfth Street 5th Floor Richmond, VA 23219 (Counsel for three amici) Andrew A. Nicely Mayer Brown LLP 1999 K Street NW Washington, DC 20006-1101 (Counsel for amici Constitutional Law Professors) Richard A. Samp Washington Legal Foundation (DC) 2009 Massachusetts Avenue NW Washington, DC 20036 (Counsel for amicus Washington Legal Foundation

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Timothy J. St. George Troutman Sanders LLP Troutman Sanders Building 1001 Haxall Point PO Box 1122 Richmond, VA 23218-1122 (Counsel for amicus Landmark Legal Foundation)

John H. Young SD Smith Esquire PLLC 2001 South Main Street, Suite 207-F Blacksburg, VA 24060 (Counsel for amici Main Street Alliance and Small Business Majority Foundation, Inc.)

I further certify that I will serve a true and correct copy of the foregoing via U.S. Mail, postage prepaid, on the following individual listed as a participant in this case who is not registered with the CM/ECF system: Ray E. Parker PO Box 320636 Alexandria, VA 22320 (Amicus appearing pro se)

/s/___________________

Daniel M. Gray (VSB #39942) Law Offices of Daniel M. Gray, LLC 7617 Virginia Avenue Falls Church, VA 22043 703-204-0164 Fax [phone] [e-mail] Richard B. Rogers (VSB #43148) Richard B. Rogers plc 6606 Thurlton Drive Alexandria, VA 22315-2649 571-969-1727 (Fax: Please call first) [e-mail] Peter Ferrara General Counsel American Civil Rights Union 1232 Pine Hill Rd. McLean, VA 22101 703-582-8466 610-438-5721 Counsel for Amicus Curiae American Civil Rights Union

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