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

Filing 54

MOTION for Leave to File Amicus Curiae Brief In Support of the Defendant's Motion to Dismiss by Constitutional Law Professors. (Attachments: # 1 Amicus Brief of Constitutional Law Professors, # 2 Proposed Order)(Nicely, Andrew)

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. ) ______________________________________ )

Civil Action No. 3:10-cv-00188-HEH

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF CONSTITUTIONAL LAW PROFESSORS IN SUPPORT OF THE DEFENDANT'S MOTION TO DISMISS Pursuant to this Court's June 3, 2010 Order (Dkt. # 23), amici Jack M. Balkin, Gillian E. Metzger, and Trevor W. Morrison respectfully request leave to file an amicus curiae brief in support of the Defendant's Motion to Dismiss. Amici are constitutional law professors with substantial expertise in the text, history, and structure of the Constitution as well as constitutional law doctrine as developed by the Supreme Court, including as it relates to the legislative authority of the federal government. The proposed amicus curiae brief addresses whether the Minimum Coverage Fee Provision of the Patient Protection and Affordable Care Act constitutes a proper exercise of Congress's taxation power, one of the issues before the Court in this case. See Mot. to Dismiss at 35-39. In cases presenting constitutional issues, it is common for courts to accept amicus briefs from legal academics with relevant expertise.

Amici's proposed brief is attached to this motion. The Commonwealth of Virginia has consented to amici's request for leave to file. Defendant Sebelius takes no position with respect to this motion. Amici believe that the proposed brief may be of assistance to the Court. See Peters v. Jenney, 327 F.3d 307, 319 n. 13 (4th Cir. 2003) (noting that an amicus curiae brief was "helpful to the court"); Bradley v. School Board of City of Richmond, 317 F. Supp. 555, 576 (E.D. Va. 1970) (same). Accordingly, amici respectfully request leave to file the amicus brief.

DATED: June 17, 2010. Respectfully submitted, By: __/s/ Andrew A. Nicely Andrew A. Nicely (Va. No. 41750) [e-mail] Andrew J. Pincus MAYER BROWN LLP 1999 K Street, N.W. Washington, DC 20006-1101 Telephone: [phone] Facsimile: [phone] Counsel for Amici Curiae

CERTIFICATE OF SERVICE I hereby certify that on the 17th day of June, 2010, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Earle Duncan Getchell, Jr. Charles E. James, Jr. Stephen R. McCullough Wesley Glenn Russell, Jr. Office of the Attorney General 900 E. Main Street Richmond, Virginia 23219 Jonathan Holland Hambrick Office of the U.S. Attorney 600 E. Main Street, Suite 1800 Richmond, VA 23219 Erika Myers Ian Gershengorn Joel McElvain Sheila M. Lieber Department of Justice Federal Programs Branch 20 Massachusetts Ave. NW, Room 7332 Washington, D.C. 20001 Colby M. May American Center for Law & Justice (DC) 201 Maryland Ave NE Washington, DC 20002 __/s/ Andrew A. Nicely Andrew A. Nicely (Va. No. 41750)