Our chapter on interest groups notes that think tanks and advocacy groups may try to influence the judiciary by filing amicus curiae briefs. The health care debate provides a vivid example, as the American Enterprise Institute reports:
In one of the most interesting discussions on Wednesday, Justice Samuel Alito asked what the fallback position would be for the rest of the act if the mandate were declared unconstitutional. He then referred to the amicus, or "friend of the court," brief filed by AEI health experts Thomas Miller, Joe Antos, Jim Capretta and Chris Conover, among others, which contends Title I, mandating the establishment of health exchanges and the means to pay for them, must go.Dylan Scott writes at Governing:
In response, Paul D. Clement, lead attorney for the petitioners and a former solicitor general under President George W. Bush, said that Title I and "a handful of related provisions that are very closely related to that are really the heart of the act."
"At a certain point, I just think that, you know, the better answer might be to say, we've struck the heart of this act, let's just give Congress a clean slate. If it's so easy to have that other big volume get reenacted, they can do it in a couple of days; it won't be a big deal. ... I'd rather suspect that it won't be easy," Clement said.
Here's another look at the amicus brief. Other extensive writings that Miller has done on the current case can be found on the AEI blog here and on his AEI scholar page here.
The Supreme Court’s deliberations over the constitutionality of the Affordable Care Act’s Medicaid expansion hinged on fundamental questions about the relationship between the federal government and the states. Does the ACA represent a transition from “cooperative” federalism to “coercive” federalism by encroaching on the 10th Amendment, as the 26 opposing states suggest?
Prior to this week’s arguments, Governing asked some legal experts to speculate on the potential implications for federalism if the Medicaid expansion is overturned. Some, including 13 states that filed an amicus brief with the Court in support of the law, have argued that such a decision might set a precedent that could delegitimize other programs (such as education and transportation) in which federal funding is predicated on some conditions set by Congress.
While much of Wednesday’s oral arguments centered very specifically on the ACA and the Medicaid expansion, those broader issues were raised by justices themselves.
“Are you suggesting that at a certain point the states would have a claim against the federal government raising their taxes because somehow the states will feel coerced to lower their tax rate?” Justice Sonia Sotomayor, considered a supporter of the ACA, asked Paul Clement, former Solicitor General and attorney for 26 states opposing the law, after Clement said that increased federal taxes reduced the states’ ability to impose their own taxes.
“No, I’m not,” Clement replied.
...
When Solicitor General Donald Verrilli stepped up to defend the government’s position that the Medicaid expansion was constitutional under the Spending Clause, Justices Antonio Scalia and John Roberts pressed him to explain if there are any limits to the conditions that Congress can place on states to receive federal funding.
When Verrilli offered the example of Congress forcing state governments to relocate their statehouses, Scalia interrupted. “Short of that, they can make the state do anything at all?” he asked.
Verrilli responded that any conditions must be “germane” (there must be a relationship between the condition and the spending it affects) before Roberts cut in, saying Verrilli hadn’t addressed the central question of whether coercion is even possible.
“The concern is, if you can say: ‘If you don't agree with this, you lose all your money,’ whether that's really saying the limitation in the Constitution is… largely meaningless,” Roberts said. Verrilli replied that he didn’t believe the current case presented that question.
