Lederman_Thesis

1

Business at the Court: The U.S. Chamber of Commerce and the Legal Campaign
against Health Care Reform, 2010-2012
Isaac Snowden Lederman
April 8, 2015
A Senior Thesis presented to the Faculty of the Woodrow Wilson School of Public and
International Affairs in partial fulfillment of the requirements for the degree of Bachelor of
Arts

2

Dedicated To the Memory
of My Grandmother, Marcia Coffey Lederman,
Who Never Stopped Caring for Us All

3

Acknowledgements
I would not have been able to complete my thesis were it not for the help of many
people. I am deeply indebted to my adviser, Dean Wailoo, for providing me with
invaluable guidance and equally indispensable comments on my drafts. I also would like
to thank Professor Whittington for introducing me to the literature on legal mobilization
and courts’ use of amicus briefs. Many others within the Woodrow Wilson School of
Public and International Affairs deserve recognition as well. I would like to express my
gratitude to Professor Zelizer for teaching me about the development and evolution of the
welfare state, Professor Starr for giving me a framework by which to understand changes
in American medicine, and Professors Somers and Verdier for illuminating the operation
of the current health care reform effort. In addition, I would like to thank Galen Benshoof
for helping me locate amicus briefs.
I also received a great deal of assistance outside of the Wilson School. I am
particularly grateful to the reference librarian Audrey Welber for showing me how to use
Zotero and to the law librarian David Hollander for helping me with Bluebook citation.
In addition, I would like to thank Professor Rosenthal at New York University for
suggesting that I speak with Professor Whittington about my research. Beyond that, I
wish to acknowledge Professor Green at Brown University for sparking my interest in
business groups two years ago. Lastly, I want to thank my family and friends for their
constant support. Of my friends, I specifically would like to thank Teddy Schleifer,
Valentín Hernández, Luc Cohen, and Evaline Tsai.

4

Table
of
Contents

Introduction
.................................................................................................................................................
6

“I
Feel
The
Earth
Move
Under
My
Feet”:
The
Rise
of
the
Conservative
Legal

Movement
and
the
Fall
of
Single
Payer
..........................................................................................
11

Courting
Disaster:
The
Legal
Campaign
against
the
PPACA
.................................................
33

No
Business
Here:
Post-‐NFIB
PPACA
Litigation
.....................................................................
105

Conclusion
...............................................................................................................................................
111

Bibliography
...........................................................................................................................................
114

Acronyms
ACLJ: American Center for Law and Justice
AHIP: America’s Health Insurance Plans
CHIP: Comprehensive Health Insurance Plan
EMTALA: Emergency Medical Treatment and Active Labor Act
FRC: Family Research Council
HSA: Health Security Act
MLR: Medical Loss Ratio
NCLC: National Chamber Litigation Center
NFIB: National Federation of Independent Business
PPACA: Patient Protection and Affordable Care Act
VHCFA: Virginia Health Care Freedom Act

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Abstract
How do interest groups use the courts to change policy? To answer this question,
this thesis examines the litigation surrounding the Patient Protection and Affordable Care
Act of 2010 (PPACA). In particular, this study focuses on the U.S. Chamber of
Commerce’s involvement in the legal challenges to the Act between March 2010 and
June 2012.

This thesis draws on over 200 sources. Seven hundred and forty-two pages of
amicus curiae (“friend of the court”) briefs and federal court rulings lie at the heart of this
work. Political science provides some, but not all of the tools by which to assess these
texts. It counsels that language, not citation, is evidence of judges’ borrowing from briefs.
Moreover, political science pushes scholars to recognize the contingent and
complementary nature of legal action. In addition, historical institutionalism brings into
focus how movements, in part, reflect the regimes they fight. Lastly, anthropology
accounts for this thesis’s general wariness towards the powerful and their
(re)constructions of history.

This study proceeds as follows. Chapter 1 shows how the business lobby played a
role in moving both the judiciary and health care debates to the right. Even before
proceedings against the PPACA began, the interest group had already triumphed. All
levels of the federal judiciary now boast more business-friendly judges than prior to
1971. The Chamber also won in that the health care reform law respected free enterprise
in a way that other, earlier bills did not. This victory did not stop the Chamber from
helping to litigate against the law between 2010 and 2012. Chapter 2 examines the
business lobby’s involvement in the legal campaign and the influence of its amicus briefs
on appellate court decisions. Although the organization took a rather laissez-faire
approach, it still managed to have the pro-business justices of the Supreme Court rule in
such a way as to limit the power of the federal government for years to come. Chapter 3
investigates why the interest group has not continued to fight President Obama’s
signature domestic policy achievement in court. It appears that while the Chamber
continues to oppose the PPACA, it does not see its interests aligned with those of the
sometimes successful challengers in recent cases.
These findings have two main policy implications. First, while interest groups do
not shape the nation’s laws singlehandedly, this study has left no doubt that they can
exercise enormous power over Congress and the federal courts. While scholars have
mainly focused on the relationship between the Chamber and the Supreme Court, further
quantitative research is needed to assess the disposition of the appellate courts and the
federal district courts towards business interests. Second, this study has made clear that
although a policy’s life begins in enactment, it does not end there. Courts often must
decide whether a given reform lives or dies. Political scientists should work to integrate
the judiciary into their accounts of not just why some overhauls survive and other do not
but also how policy change happens more generally. Ultimately, this thesis argues that
when business is at court, it wins, even if it has done so legislatively already.

6

Introduction
March 23, 2012 seemed to be just another Friday at the U.S. Chamber of
Commerce’s headquarters in Washington, D.C. Yet another prominent lawyer was
preparing to argue an important case before the Supreme Court by rehearsing his
arguments in a moot court held by the business lobby.1 Despite the seemingly ordinary
nature of the event, a number of questions loomed over it.
Why did the interest group organize a moot court in the first place? When and
why did the organization start holding these events? Why was the Chamber helping this
lawyer fight policies it had once supported? Why had it supported those policies? How
did its evolving position affect debates on this issue? How else did the business lobby
involve itself in this litigation? What stance would it take in future cases over this law?
And, more generally, what does the defender of American enterprise’s evolution on this
issue indicate about how interest groups use the courts to change policy?
Though this thesis answers all these questions, it focuses mainly on the last one,
namely how interest groups use the courts to change policy. Each of these inquiries
merits attention, not just because a somewhat similar and no less important case
concerning the same law is now before the nation’s highest court.2 To date, scholars have
not systematically examined how conservatives, the Chamber in particular, have reshaped
the American health policy landscape from 1971 to the present. Though historians and

1
Adam Liptak, In Supreme Court Health Care Case, Training for a Legal Marathon, THE NEW YORK TIMES, March 25, 2012,
http://www.nytimes.com/2012/03/26/us/in-supreme-court-health-care-case-training-for-a-legal-marathon.html (last visited Jan 27,
2015).
See also Jeffrey Rosen, Supreme Court Inc., THE NEW YORK TIMES, March 16, 2008,
http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html (last visited Mar 23, 2015).
See also Eric Lichtblau, Lobby Groups Blanket Supreme Court On Obama Health Care Plan, THE NEW YORK TIMES, March 24,
2012, http://www.nytimes.com/2012/03/25/us/politics/lobby-groups-blanket-supreme-court-on-obama-health-care-plan.html (last
visited Mar 31, 2015).
2
Margot Sanger-Katz, How an Adverse Supreme Court Ruling Would Send Obamacare Into a Tailspin, THE NEW YORK TIMES,
February 27, 2015, http://www.nytimes.com/2015/03/02/upshot/how-an-adverse-supreme-court-ruling-would-send-obamacare-into-a-
tailspin.html (last visited Mar 30, 2015).

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sociologists have surveyed reforms efforts since the dawn of the twentieth century, they
have yet to assemble a comprehensive account of the role of the business lobby in these
debates.3 Political scientists have, in part, helped remedy this deficiency, but their works
either do not cover recent events or do not focus exclusively on this interest group.4
In the legal studies realm, the literature on the Chamber is somewhat more
substantial. Although the organization hardly features in the scholarship on the rise of the
conservative legal movement, journalists have shed light on its attempts to sway the
judiciary, both at the federal and state levels.5 For example, in his impressive work on the
rise of the conservative legal movement, the political scientist Steven Teles argues that
the business lobby did little to help move the judiciary to the right.6 In addition, law
professors have documented the business lobby’s tremendous success before the Supreme
Court.7 The most important contribution to this literature is David Franklin’s study,
which found that an aversion to regulation through litigation explains the pro-business
disposition of the current Court.8
Still, much remains unknown.9 How did the interest group participate in the
litigation over the Patient Protection and Affordable Care Act of 2010 (PPACA)? How
did the arguments advanced in its amicus curiae (“friend of the court”) briefs shape the

3
COLIN GORDON, DEAD ON ARRIVAL: THE POLITICS OF HEALTH CARE IN TWENTIETH CENTURY AMERICA (2003).
See also PAUL STARR, REMEDY AND REACTION: THE PECULIAR AMERICAN STRUGGLE OVER HEALTH CARE REFORM (2013).
4
MARIE GOTTSCHALK, THE SHADOW WELFARE STATE: LABOR, BUSINESS, AND THE POLITICS OF HEALTH-CARE IN THE UNITED
STATES (2000).
See also JACOB S. HACKER & PAUL PIERSON, WINNER-TAKE-ALL POLITICS: HOW WASHINGTON MADE THE RICH RICHER--AND
TURNED ITS BACK ON THE MIDDLE CLASS (2010).
5
STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW (2010).
See also Rosen, supra note 1.
See also Michael Scherer, THE MAKING OF THE CORPORATE JUDICIARY MOTHER JONES (2003),
http://www.motherjones.com/politics/2003/11/making-corporate-judiciary (last visited Feb 18, 2015).
See also Jim Vandehei, Business Lobby Recovers Its Clout By Dispensing Favors for Members, WALL STREET JOURNAL, September
11, 2001, http://www.wsj.com/articles/SB100015411979219346 (last visited Mar 24, 2015).
6
STEVEN M. TELES, supra note 5.
7
STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW (2010).
See also Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court, 97 MINN. LAW REV.
1431–1472 (2013).
8
Franklin, supra note 7 at 1054.
9
David Scott, Friendly Fire: Amicus Curiae Participation and Impact at the Roberts Court, DR. DISS., 4–52 (2013),
http://trace.tennessee.edu/utk_graddiss/2614.

8

opinions of federal courts? And did it really side with a Democratic administration in two
recent cases over the Act?10
To answer these questions, this study will draw on over 200 sources. Seven
hundred and forty-two pages of amicus briefs and federal court rulings lie at the heart of
this work. Political science provides some, but not all of the tools by which to assess
these texts. It counsels that language, not citation, is evidence of judges’ borrowing from
briefs.11 Moreover, political science pushes scholars to recognize the contingent and
complementary nature of legal action.12 In addition, historical institutionalism brings into
focus how movements, in part, reflect the regimes they fight.13
Lastly, anthropology
accounts for this study’s general wariness towards the powerful and their
(re)constructions of history.14
This thesis differs from prior work in the law and society field in that it extends
the analysis of disputes outside the courtroom. The law professor Marc Galanter has
argued that the legal system confers a number of interlocking advantages upon powerful
parties who appear often before the same courts.15
What Galanter does not mention is that
the laws under dispute may already reflect the desires of these powerful parties, who
could have successfully lobbied legislatures. Though other studies have connected
litigation to lobbying, none has yet to show how an interest group triumphed even before

10
David H. Gans, Silence Inc., SLATE, 2014,
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/hobby_lobby_contraception_mandate_challenge_why_have_
corporations_refused.html (last visited Mar 29, 2015).
See also Stephanie Mencimer, America’s largest health care company tells Supreme Court that anti-Obamacare argument is
“absurd,” MOTHER JONES, 2015, http://www.motherjones.com/politics/2015/02/hca-king-burwell-supreme-court-obamacare-amicus-
brief (last visited Mar 29, 2015).
11
PAUL COLLINS, FRIENDS OF THE SUPREME COURT: INTEREST GROUPS AND JUDICIAL DECISION MAKING. 8 (2008).
12
Michael McCann, Litigation and Legal Mobilization, in THE OXFORD HANDBOOK OF LAW AND POLITICS (Gregory Caldeira, R.
Daniel Kelemen, & Keith Whittington eds., 2009),
http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199208425.001.0001/oxfordhb-9780199208425-e-30#oxfordhb-
9780199208425-div1-153.
13
STEVEN M. TELES, supra note 5 at 17.
14
KAREN HO, LIQUIDATED: AN ETHNOGRAPHY OF WALL STREET 29 (2009).
15
Marc Galanter, Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change, 9 LAW SOC. REV. 95–160, 125
(1974).

9

the start of legal action.16
Beyond that, the very fact that an interest group did score a
victory in seeking significant reform would call into question the assertion of the political
scientist Gerald Rosenberg that courts are nothing but a “hollow hope” for social
change.17
These methods of analysis and data will make clear how conservatives, the
Chamber in particular, have reshaped the American health policy landscape from 1971 to
the present. Chapter 1 will show how the business lobby played a role in moving both the
judiciary and health care debates to the right. Even before proceedings against the
PPACA began, the interest group and its allies in the conservative legal movement had
already triumphed. All levels of the federal judiciary, including the Supreme Court, now
boast more business-friendly and conservative judges than prior to 1971.
And though the organization lost in that Congress passed and the president signed
the Act, it won more generally, as the health care reform law respected free enterprise in
a way that other, earlier bills did not. This victory did not stop the Chamber from helping
to litigate against the law between 2010 and 2012. Chapter 2 will examine in great detail
the business lobby’s involvement in the legal campaign and the influence of its amicus
briefs on appellate court decisions. It will show how the interest group was forced to
recalibrate its strategy, as the case moved one court to the next. Chapter 3 will investigate
why the interest group has not continued to fight President Obama’s signature domestic
policy achievement in court. It appears that while the Chamber continues to oppose the
PPACA, it does not see its interests aligned with those of the sometimes successful

16
John M. de Figueiredo & Rui J. P. de Figueiredo Jr., The Allocation of Resources by Interest Groups: Lobbying, Litigation and
Administrative Regulation, 4 BUS. POLIT. 161 – 181 (2002).
17
GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2nd ed. 2008).

10

challengers in recent cases. Ultimately, this thesis argues that when business is at court, it
wins, even if it has done so legislatively already.

11

Chapter 1
“I Feel The Earth Move Under My Feet”: The Rise of the Conservative Legal
Movement and the Fall of Single Payer
I. INTRODUCTION
In January 1971, the singer and songwriter Carole King released an album entitled
Tapestry.18 In one track on the incredibly successful album, she sang of how spotting her
lover literally rocked her world. Her memorable words, “I feel the Earth move under my
feet,” were not just popular for years to come but also rather prophetic, as tectonic shifts,
though not quite of the variety King was describing, were indeed under way.19
Some eight months after the debut of Tapestry, the prominent Richmond lawyer
and future Supreme Court justice Lewis F. Powell sent a confidential memorandum to a
friend of his at the U.S. Chamber of Commerce, Eugene Sydnor.20 It is difficult to
overstate the importance of this document. The anthropologist David Harvey is one of the
many scholars who have argued that this memo represents the beginning of the renewal
of conservative dominance following the interregnum of the New Deal and the Great
Society.21
This chapter follows the lead of Harvey and others in taking Powell’s memo as its
point of departure in its investigation of conservative ascendancy. It is unique from
previous work on the subject in that it will examine the rise of the conservative legal

18
Caroline Sullivan, CAROLE KING’S TAPESTRY ALBUM RELEASED THE GUARDIAN (2011),
http://www.theguardian.com/music/2011/jun/12/carole-kings-tapestry-album (last visited Mar 22, 2015).
19
Natalie Angier, IDEAS & TRENDS; Pickup Lines Dad Used on Mom, THE NEW YORK TIMES, October 1, 1995,
http://www.nytimes.com/1995/10/01/weekinreview/ideas-trends-pickup-lines-dad-used-on-mom.html (last visited Mar 22, 2015).
20
See also HACKER AND PIERSON, supra note 4 at 117.
See also Washington and Lee University School of Law, Powell Archives, POWELL MEMORANDUM: ATTACK ON AMERICAN FREE
ENTERPRISE SYSTEM, http://law2.wlu.edu/powellarchives/page.asp?pageid=1251 (last visited Mar 22, 2015).
21
DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM 43 (2005).
HACKER AND PIERSON, supra note 4 at 117–119.

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movement in conjunction with the contemporaneous rightward shift in debates over
health care reform.
For too long, scholars have concerned themselves with either the former or the
latter, but not both together. Historians, sociologists, political scientists, ethicists and
journalists have tried their hand at explaining the battles over health care reform in the
United States.22 They, however, have not done so in conversation with their counterparts
who, not until fairly recently, began investigating the conservative legal movement and
all of its complexities.23
This study does more than just unite these two previously separate literatures. It
adds to them by showing how the Chamber played a role in moving both the judiciary
and health care debates to the right. To this end, this chapter will rely on historical
accounts, magazine features, newspaper articles, and some recently released documents
to elucidate the influence of the business lobby. Though this study focuses on one interest
group in particular, it does not accept a purely interest group-driven view of politics.24
Instead, the analysis in the following pages focuses on how movements, in part, reflect
the regimes they fight.25
This method helps explains the business lobby’s relatively
liberal positions in the 1970s.

22
To name just a few notable works:
JACOB HACKER, THE ROAD TO NOWHERE: THE GENESIS OF PRESIDENT CLINTON’S PLAN FOR HEALTH SECURITY (1997).
See also COLIN GORDON, supra note 3.
See also PAUL STARR, supra note 3.
See also EZEKIEL J. EMANUEL, REINVENTING AMERICAN HEALTH CARE: HOW THE AFFORDABLE CARE ACT WILL IMPROVE OUR
TERRIBLY COMPLEX, BLATANTLY UNJUST, OUTRAGEOUSLY EXPENSIVE, GROSSLY INEFFICIENT, ERROR PRONE SYSTEM (2014).
See also STEVEN BRILL, AMERICA’S BITTER PILL: MONEY, POLITICS, BACK-ROOM DEALS, AND THE FIGHT TO FIX OUR BROKEN
HEALTHCARE SYSTEM (2015).
23
RICHARD A. BRISBIN JR., JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL (1997).
See also ANN SOUTHWORTH, LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION (2008).
See also STEVEN M. TELES, supra note 5.
24
Starr highlights a number of problems with the interest group explanation.
PAUL STARR, supra note 3 at 5–8.
25
STEVEN M. TELES, supra note 5 at 17.

13

Together, these sources and this method of analysis will underscore how
conservatives, the Chamber in particular, reshaped the American health policy landscape
between August 23, 1971 and March 23, 2010. Though the organization has long
involved itself in health care debates, it did not immediately participate in the nascent
conservative legal movement in the early 1970s. Indeed, the business lobby did not create
its legal arm, the National Chamber Litigation Center (NCLC), until 1977. But even
following the founding of the NCLC, the Chamber largely stayed away from the
increasingly mainstream and somewhat anti-corporate conservative legal movement. Not
until the dawn of the twenty-first century did the business lobby begin to join, on
occasion, with this reactionary cause to forward the agenda of American enterprise in the
courts.
The Chamber took a more active approach to the debates over the health care
reform. In 1971, it endorsed President Richard Nixon’s plan, which, although not the
single payer system of which many liberals dreamed, in many ways resembled the
PPACA. Two decades passed before health care reform returned to the national stage, as
concerns over cost-containment overshadowed the need to expand coverage to millions.
At the same time, Republicans were concocting new ideas of health care reform, ideas
that in part reflected the conservative legal movement’s desire for minimal state
intervention. When these ideas finally crossed the aisle in the 2000s, the business lobby,
after a brief period of flirtation, turned against them. And since its lobbying failed to kill
the PPACA in 2010, the Chamber, as Chapter 2 shows in great detail, helped litigate
against the Act.

14

This chapter proceeds as follows. The first section documents the business
lobby’s involvement in the conservative legal movement, a cause that has had
tremendous success in having judges who share its viewpoint appointed to all levels of
the judiciary, including the Supreme Court. The second section examines how the
Chamber went from endorsing legislation akin to the PPACA to opposing President
Barack Obama’s signature domestic policy achievement.
II. WITH FRIENDS LIKE THESE
The interest group did not immediately participate in the nascent conservative
legal movement in the early 1970s. Indeed, the business lobby did not create its legal
arm, the NCLC, until 1977. But even following the founding of the NCLC, the Chamber
largely stayed away from the increasingly mainstream and somewhat anti-corporate
conservative legal movement. Not until the dawn of the twenty-first century did the
business lobby begin to join, on occasion, with this reactionary cause to forward the
agenda of American enterprise in the courts.
In 1971, Powell argued for the Chamber to involve itself in the battle for the
control of the law. As he saw it, revolutionaries as well other more respectable types such
as politicians were attacking the American system of free enterprise.26 In light of this
assessment, Powell advised the Chamber to not only hire a “highly competent staff of
lawyers” but also “to appear as counsel amicus in the Supreme Court” when the times

26
Franklin, supra note 7 at 1022–1023.

15

demanded such action.27 “The judiciary,” he stressed, “may be the most important
instrument for social, economic and political change.”28
The business lobby did not initially heed this call to arms. It did nothing to assist
the struggling regional conservative public-interest law firms that were springing up in
the 1970s.29 This was a regrettable decision on its part. The fact that these groups, to
some degree, depended on local businesses for their support meant that they served more
as corporate shills than fierce opponents of government intervention.30 The Chamber
could have helped bolster this pro-business attitude in the nascent conservative legal
movement by contributing money to the cause. Its failure to do so and the increasing
recognition by critics of these organizations that business did not always speak for the
free market, let alone religion in the civic sphere and the public interest more generally,
helped push the movement in an anti-corporate direction.31
The Chamber did, however, create the NCLC in 1977. It established the Center in
the words of one commentator “to file cases and briefs on behalf of business interests in
federal and state courts.”32 In its first decade, the NCLC did not see many triumphs.33
The Supreme Court simply did not buy the arguments advanced in the organization’s
filings.34 While the NCLC was having enormous difficulty scoring victories before the
nation’s highest court, Ralph Nader and his liberal allies were notching win after win in
the early 1980s.35

27
Id. at 1023.
28
Rosen, supra note 1.
29
THE TRANSFORMATION OF AMERICAN POLITICS: ACTIVIST GOVERNMENT AND THE RISE OF CONSERVATISM, 175–176 (Paul Pierson
& Theda Skocpol eds., 2007).
30
Id. at 176-177.
31
Id. at 177.
32
33
Id.
34
Id.
35
Id.

16

Even without the backing of the business lobby, the conservative legal movement
was unwittingly beginning to change the institutional ecology in ways that favored
American enterprise. With the founding of the Federalist Society for Law & Public
Policy Studies in 1982, conservatives finally had the means to shift the federal bench to
the right.36 The Society started to serve essentially as a recruiting mechanism for federal
judgeships during President Ronald Reagan’s time in office.37 Scholars agree about the
effectiveness of this networking.38 The Society helped the Reagan administration seed, as
one jurist puts it, “the courts of appeals with committed and highly capable conservative
nominees.”39 Though these appellate judges did not just kowtow to business interests,
they were far friendlier to American enterprise than their liberal counterparts.
Outside of government, seismic shifts were occurring as well. The NCLC reacted
to its defeats by expanding its operations and planning for the future. The Center began
holding moot courts for lawyers with important cases before the Supreme Court.40
Beyond that, it started enlisting both Democratic and Republicans members of the
Supreme Court bar in its attempt to have the nation’s highest court hear matters that
concerned the business community.41 In addition, the NCLC increased its engagement
with the Court by filing amicus briefs on behalf of member businesses.42 The
organization also began to act more strategically by identifying the cases that would

36
THE TRANSFORMATION OF AMERICAN POLITICS: ACTIVIST GOVERNMENT AND THE RISE OF CONSERVATISM, supra note 30 at 181–
182.
See also The Federalist Society for Law & Pubic Policy Studies, OUR BACKGROUND THE FEDERALIST SOCIETY FOR LAW & PUBIC
POLICY STUDIES, http://www.fed-soc.org/aboutus/page/our-background (last visited Mar 23, 2015).
37
ANDREW L. JOHNS, A COMPANION TO RONALD REAGAN 100 (2015).
38
THE TRANSFORMATION OF AMERICAN POLITICS: ACTIVIST GOVERNMENT AND THE RISE OF CONSERVATISM, supra note 30 at 182.
39
Simon Lazarus, Hertz or Avis - Progressives’ Quest to Reclaim the Constitution and the Courts, 72 OHIO STATE LAW J. 1201–1249,
1203 (2011).
40
41
Id.
42
Id.

17

further the cause of American enterprise the most in the long run and having the top
corporate lawyers, if not argue them, submit filings in them.43
These internal institutional changes came at a fortunate moment. In 1985, Rex
Lee established a Supreme Court appellate practice at the law firm Sidley Austin Brown
& Wood after leaving his position as solicitor general in the Reagan administration.44 Lee
had a simple goal in mind: give business the same expert counsel that federal agencies
received from the Office of the Solicitor General.45 His success in this endeavor, writes
one commentator, “prompted other law firms to hire former Supreme Court clerks and
former members of the solicitor general’s office to start business practices.”46 The NCLC
soon assumed the responsibility of coordinating this throng of lawyers in the matters of
most consequence to business.47 In short, at the same time that the Center was gaining
strength, a new infrastructure was arising to help business make its case in court.
The conservative legal movement was advancing as well. The failure to nominate
Robert Bork to the Supreme Court in 1987 marked a turning point for the reactionary
cause.48 While the budget of the Federalist Society had leveled off prior to the
conservative jurist’s nomination, it doubled in the four years following Bork’s
martyrdom, as the right rallied around its newfound hero.49 And although the nation’s
highest court did not count Bork as a member, the Supreme Court, like its inferior
counterparts, started drifting in a more conservative direction. By the late 1990s, scholars

43
Id.
44
Id.
45
Id.
46
Id.
47
Id.
48
Adam J. White, BORK WON (2012), https://www.commentarymagazine.com/articles/bork-won/ (last visited Mar 24, 2015).
49
Id.

18

were pointing to a radical transformation in American jurisprudence.50 In the so-called
“Federalism Revolution” of the last decade of the twentieth century, the Supreme Court
put new constraints on Congress’s ability to regulate interstate commerce and to coerce
the states into doing its bidding.51 These decisions pleased many in the movement,
particularly those with libertarian leanings.52
Perhaps in recognition of the reactionary cause’s success in swaying the federal
judiciary, the Chamber began involving itself in judicial politics. In 1998, the business
lobby created the Institute for Legal Reform (ILR) to overhaul the nation’s tort laws.53
The Institute offers attractive services to corporations looking to avoid lawsuits. In the
fall of 2000, for instance, Wal-Mart, Home Depot, DaimlerChrysler, and the American
Council of Life Insurers each paid the business lobby $1 million for what one journalist
described as “a TV and direct-mail advertising campaign aimed at helping elect business-
friendly judges.”54 The following year, the Chamber partnered with the Business
Roundtable to establish a network through which corporate cash could anonymously flow
into state judicial races.55 In the next two years, this cabal triumphed in eleven attorney
general races and twenty-one out of twenty-four judicial elections.56
These results were not without consequence for the federal judiciary. Deborah
Cook, for instance, won her campaign to serve as justice on the Ohio State Supreme

50
The Federalism Revolution, WALL STREET JOURNAL, June 25, 1999, http://www.wsj.com/articles/SB930266376116120932 (last
51
Erwin Chemerinsky, Keynote Address, 41 WILLAMETTE LAW REV. 827–846, 828 (2005).
52
Ilya Somin, LEFT, RIGHT, AND JUDICIAL REVIEW THE VOLOKH CONSPIRACY (2012), http://volokh.com/2012/07/12/left-right-and-
judicial-review/ (last visited Mar 24, 2015).
53
Joanne Doroshow, The Secret Chamber of Commerce and its “Tort Reform” Mission, THE HUFFINGTON POST, March 18, 2010,
http://www.huffingtonpost.com/joanne-doroshow/the-secret-chamber-of-com_b_337634.html (last visited Mar 24, 2015).
54
Vandehei, supra note 5.
55
Michael Scherer, supra note 5.
See also Shawn Zeller, Tort reform’s massive war chest, 35 NATIONAL JOURNAL, 2003, at 1008–1009.
56
BILLY CORRIHER, BIG BUSINESS TAKING OVER STATE SUPREME COURTS: HOW CAMPAIGN CONTRIBUTIONS TO JUDGES TIP THE
SCALES AGAINST INDIVIDUALS 1–138 1 (2012).
See also Robert Lenzner & Matthew Miller, Buying Justice, FORBES, 2003, http://www.forbes.com/forbes/2003/0721/064.html (last

19

Court in large part thanks to contributions from business interests.57 Thus when President
George W. Bush nominated and the Senate confirmed her to the United States Court of
Appeals for the Sixth Circuit, American enterprise had good reason to be happy.58
More important perhaps was the fact that Bush managed to momentarily unite the
Chamber and the conservative legal movement. The President brought the groups
together by nominating John Roberts to serve on the increasingly business-friendly and
already highly conservative United States Court of Appeals for the District of Columbia
Circuit.59 Roberts was not just a movement conservative but also in the words of one
Supreme Court litigator “the go-to lawyer for the business community.”60 The business
lobby and the reactionary cause cheered not only his Senate confirmation but also his
elevation to Chief Justice of the Supreme Court.61
By time Roberts made his way to the nation’s highest court, American enterprise
and its more ideological counterparts in the legal field could look with unalloyed delight
at what they had achieved in the past four decades. The Supreme Court did not just boast
Roberts alone. It also featured Justice Antonin Scalia, who has sided with the Chamber an
impressive amount and fought to maintain religion’s place in the pubic realm.62 Even the
Court’s liberals, to the extent that they deserve that label, cater to business interests.63

57
58
Id.
See also David Lat, JUDGE OF THE DAY: DEBORAH COOK ABOVE THE LAW (2007), http://abovethelaw.com/2007/01/judge-of-the-day-
deborah-cook/ (last visited Mar 24, 2015).
59
Senator Warren notes that “the President with the most appointees sitting on the D.C. Circuit right now is Ronald Reagan.”
See Elizabeth Warren, THE CORPORATE CAPTURE OF THE FEDERAL COURTS 5 (2013).
60
See also Jeffrey Rosen, The Stealth Justice, THE NEW YORK TIMES, May 2, 2009,
http://www.nytimes.com/2009/05/02/opinion/02rosen.html (last visited Mar 24, 2015).
61
See also Rosen, supra note 61.
62
Between 2006 and 2009, Franklin observes, “The justice who sided with the Chamber most often was Scalia.”
See also DANIEL TAGLIARINA, CULTURE WARRIOR: SCALIA’S FIGHT FOR (SELECTIVE) RELIGIOUS RIGHTS (2011),
http://papers.ssrn.com/abstract=1901172 (last visited Mar 22, 2015).
63
Epstein, Landes, and Posner, supra note 7 at 1449.

20

The Chamber, after all, endorsed Justice Ruth Bader Ginsburg’s nomination to the
nation’s highest court.64
Thus, when conservatives used the language of federalism to challenge the
constitutionality of the PPACA in 2010, they did so knowing full well that, as one pair of
legal scholars puts it, “a majority of the Roberts Court spoke this language fluently.”65
Shortly before the Court’s ruling in the health care case in 2012, John Cassidy of The
New Yorker described the state of affairs more bluntly. “The right has already won,” he
remarked.66 What Cassidy did not mention was the fact that conservatives had also
triumphed in the legislative debates over health care reform as well.67
III. FROM LOVE TO LITIGATION
The Chamber took a more active approach to the debates over the health care
reform than the battle for the control of the law. It endorsed President Nixon’s plan,
which, although not the single payer system of which many liberals dreamed, in many
ways resembled the PPACA. Two decades passed before health care reform returned to
the national stage, as concerns over cost-containment overshadowed the need to expand
coverage to millions. At the same time, Republicans were concocting new ideas of health
care reform, ideas that in part reflected the conservative legal movement’s desire for
minimal state intervention. When these ideas finally crossed the aisle in the 2000s, the
business lobby, after a brief period of flirtation, turned against them. And since its

See also Adam Liptak, Pro-Business Decisions Are Defining This Supreme Court, THE NEW YORK TIMES, May 4, 2013,
http://www.nytimes.com/2013/05/05/business/pro-business-decisions-are-defining-this-supreme-court.html (last visited Mar 20,
2015).
64
65
LAURENCE TRIBE & JOSHUA MATZ, UNCERTAIN JUSTICE: THE ROBERTS COURT AND THE CONSTITUTION 79 (2014).
66
John Cassidy, Health Care and the Supremes: Why the Right Has Already Won, THE NEW YORKER, 2012,
http://www.newyorker.com/news/john-cassidy/health-care-and-the-supremes-why-the-right-has-already-won (last visited Mar 24,
2015).
67
HACKER AND PIERSON, supra note 4 at 97.

21

lobbying failed to kill the PPACA in 2010, the Chamber, as Chapter 2 shows in great
detail, helped litigate against the Act.
Though Powell dealt with the courts at some length in his memo, he also
emphasized the need for the business lobby to beef up in order to engage its opponents in
all the forums of American democracy. He observed that strength lay “in organization, in
careful long-range planning and implementation, in consistency of action over an
indeﬁnite period of years, in the scale of ﬁnancing available only through joint effort” as
well as “in the political power available only through united action and national
organizations.”68 To say the least, the business organization was hardly flexing its
muscles at this time.69 Powell wanted the Chamber “to press vigorously in all arenas for
support of the enterprise system.”70
To some degree, the interest group followed these recommendations. Between
1972 and 1982, its membership more than quadrupled from 60,000 firms to over
250,000.71 And between 1976 and 1980, its budget tripled.72 Still, it did not complement
this aggressive reorganization with nearly as aggressive policy plans for the defense of
American enterprise. The business lobby’s actions in this latter realm seem, by today’s
standards, shockingly liberal: some might go so far as to deem them downright radical.73
As the political scientists Jacob Hacker and Paul Pierson observe, the Nixon health care
plan the organization endorsed was “more ambitious than what President Obama

68
DAVID HARVEY, supra note 21 at 43.
69
KIM PHILLIPS-FEIN, INVISIBLE HANDS: THE MAKING OF THE CONSERVATIVE MOVEMENT FROM THE NEW DEAL TO REAGAN 157
(2009).
70
Id. at 160.
71
DAVID HARVEY, supra note 21 at 43.
72
73
Yuval Levin, for instance, has called the PPACA radical.
Washington Free Beacon Staff, YUVAL LEVIN: OBAMACARE A “RADICAL APPROACH TO HEALTHCARE” WASHINGTON FREE BEACON
(2013), http://freebeacon.com/issues/yuval-levin-obamacare-a-radical-approach-to-healthcare/ (last visited Mar 24, 2015).

22

proposed in 2009.”74 It is difficult to comprehend the Chamber’s moves in this period
without reference to the wider context.
If anything, moderation marked Nixon’s proposal. Others were imagining far
more dramatic transformations of the American health care system. In 1970, Senator
Edward Kennedy (D-MA) and Representative Martha Griffiths (D-MI) had proposed in
the words of a leading health law scholar “a government-run single payer system, based
on the idea that health care was a fundamental right for every American.”75 If their
Health Security Act (HSA) passed, the federal government would eliminate the health
insurance industry altogether by becoming the sole insurer of Americans.76 Kennedy and
Griffiths suggested funding this massive expansion of the welfare state mainly through
payroll taxes.77
While the HSA enjoyed little public support and drew the wrath of many
concentrated interests such as the health insurance industry, the Republican president
nevertheless felt so threatened by the Democratic plan that he countered with his own
proposal in 1971.78 Under Nixon’s Comprehensive Health Insurance Plan (CHIP),
employers would have to provide coverage to their employees, while the federal
government and its state counterparts would lower the cost of premiums for the poor and
the unemployed through subsidies.79 This proposal suffered from two defects. First, it did

74
75
Barry R. Furrow, Health Reform and Ted Kennedy: The Art of Politics and Persistence, 14 N. Y. UNIV. J. LEGIS. PUBLIC POLICY
445–476, 459 (2011).
76
Id.
77
Id.
78
Id. at 461
See also CATHERINE HOFFMAN, NATIONAL HEALTH INSURANCE: A BRIEF HISTORY OF REFORM EFFORTS IN THE U.S. 1–8 5 (2009).
79
Furrow, supra note 76 at 461.
See also Nixon’s Plan For Health Reform, In His Own Words, KAISER HEALTH NEWS, September 3, 2009,
http://kaiserhealthnews.org/news/nixon-proposal/ (last visited Mar 25, 2015).
See also Steven Pearlstein, Kennedy Saw Health-Care Reform Fail in the “70s; Today’s Lawmakers Don’t Have To, THE
WASHINGTON POST, August 28, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/27/AR2009082703919.html
(last visited Mar 25, 2015).
See also PAUL STARR, supra note 3 at 54.

23

not cover the entire population.80 Second, the employer program offered a better package
of minimum benefits than the joint federal-state partnership.81
CHIP thus foreshadowed the PPACA by both mandating coverage and swelling
the ranks of the insured through a joint federal-state partnership. Because the business
lobby much preferred this approach to that of Kennedy and Griffiths, it overwhelmingly
endorsed the plan in May 1971.82 Nevertheless, the Chamber had some reservations
about the proposal. It did not like the employer mandate, which in its opinion would
saddle the large businesses it represented with the costs of their employees’ health
insurance.83
Still, these concerns were not so pressing as to make the defender of American
enterprise hide its love of decidedly moderate health care reform. In this regard, it
differed from the National Federation of Independent Business (NFIB), whose small
business membership, the organization claimed, would struggle to provide care to their
employees under Nixon’s mandate.84 Though Kennedy and Griffiths did not secure the
NFIB’s endorsement, they made clear that their plan would serve the needs of small
enterprises well.85
In the two years following the introduction of these competing proposals, little
happened legislatively. “With organized labor and leading Democrats solidly committed
to national health insurance, the administration implacably opposed, and the business
community divided,” notes the political scientist Marie Gottschalk, “Congress and the

80
PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE: THE RISE OF A SOVEREIGN PROFESSION AND THE MAKING
OF A VAST INDUSTRY 404 (1982).
81
Id.
82
U.S. Chamber of Commerce, 100 YEARS: STANDING UP FOR AMERICAN ENTERPRISE U.S. CHAMBER OF COMMERCE,
https://www.uschamber.com/timeline/ (last visited Mar 24, 2015).
83
GOTTSCHALK, supra note 4 at 69.
84
Id. at 69.
85
Id.

24

White House remained at an impasse on health policy in 1971 and 1972.”86 This
stalemate continued into 1973.87
In 1974, however, change once again seemed possible. In February, Nixon
offered a revised version of his earlier plan in a desperate attempt to win back public
favor in the midst of the Watergate scandal.88 Under this new proposal, not only would
more of the population receive coverage but also no disparity in minimum benefits would
exist between the employer program and the joint federal-state partnership.89 And in a
nod to business interests, the president made the previously mandatory employer
participation voluntary.90
Two months after the release of the president’s plan, Kennedy unveiled his own
reworked proposal. In contrast to Kennedy-Griffiths, private insurers would act as fiscal
intermediaries and patients would foot some of the cost of their medical bills.91 Though
both the administration and the liberal lion had softened their positions, neither had
enough time to negotiate before Nixon’s resignation in August.92 Thus the period of
postwar prosperity that had seen the expansion of Social Security and the creation of
Medicare and Medicaid came to an end in scandal.93 Single payer had sung its swan
song.
With prices and unemployment rising and growth slowing, health care reformers
worked to rein in costs in the next two decades. The historian Colin Gordon makes clear

86
Id. at 70.
87
Id.
88
MARIE GOTTSCHALK, THE SHADOW WELFARE STATE: LABOR, BUSINESS, AND THE POLITICS OF HEALTH-CARE IN THE UNITED
STATES 69 (2000).
89
STARR, supra note 81 at 404.
See also PAUL STARR, supra note 3 at 57.
90
GOTTSCHALK, supra note 4 at 70.
91
PAUL STARR, supra note 3 at 56.
92
Id. at 57.
Berkowitz notes that even Robert Ball could not cobble together deal of some sort in the short time between the release of Kennedy’s
reworked bill and Nixon’s resignation.
See EDWARD D. BERKOWITZ, ROBERT BALL AND THE POLITICS OF SOCIAL SECURITY 231 (2003).
93
BERKOWITZ, supra note 93 at 232.

25

that although efforts to expand coverage had collapsed, “efforts to control costs made
greater progress.”94 Just as the Supreme Court underwent radical transformation, so too
did American medicine. In particular, the “managed care” revolution swept through the
nation’s health care system with a vengeance.95 Many factors contributed to the
increasing integration of the previously separate payment for and provision of medical
services, but none seems to have been as important as the business community’s
mobilization under Reagan.96
Though American enterprise had a business-friendly president in office and a
cause behind which it rallied, the Chamber failed to influence health policy at this time.
“Because of its blanket endorsement of most Reagan policies, its dominance by small
business and provider interests, and its slow-moving policy process,” the sociologist
Linda Bergthold explains, the Chamber did not wield the same power as the Business
Roundtable in national health care debates.97 That is to say, the business lobby did little
to shape the laws that curbed costs through managed care arrangements in the years
following the fall of single payer.
This setback aside, the Chamber did not leave the 1980s empty-handed. The
development of the idea of an individual mandate constituted a victory for the business
lobby in that it represented a decisive shift away from the dreaded employer mandate. In
1986, Reagan put his signature on the Emergency Medical Treatment and Active Labor

94
COLIN GORDON, supra note 3 at 35.
95
96
Thomas R. Oliver, Policy Entrepreneurship in the Social Transformation of American Medicine: The Rise of Managed Care and
Managed Competition, 29 J. HEALTH POLIT. POLICY LAW 701–733, 720 (2004).
See also Jacob S. Hacker & Theodore R. Marmor, The misleading language of managed care, 24 J. HEALTH POLIT. POLICY LAW
1033–1043, 1036 (1999).
97
LINDA BERGTHOLD, PURCHASING POWER IN HEALTH: BUSINESS, THE STATE, AND HEALTH CARE POLITICS 38–39 (1990).

26

Act (EMTALA).98 This legislation in the words of one health scholar “required any
hospital participating in Medicare—that is to say, nearly all of them—to provide
emergency care to anyone who needs it, including illegal immigrants, regardless of
ability to pay.”99 EMTALA, in other words, gave people little reason to buy health
insurance, as hospitals had no choice but to treat them.100 While employment-based
coverage was also beginning to decline at the end of the decade, this problem did not
preoccupy conservative wonks as much as misaligned incentives.101
In 1989, Stuart Butler of the Heritage Foundation proposed remedying
EMTALA’s failings through a minimum coverage requirement. As he saw it, “health care
protection is a responsibility of individuals, not businesses.”102 This statement delighted
the Chamber, which had disliked Nixon’s idea of an employer mandate. And given the
existence of what Butler what called “an implicit contract between households and
society, based on the notion that health insurance is not like other forms of insurance
protection,” the scholar argued that the federal government should require citizens to
purchase coverage.103 Like his many friends in the conservative legal movement, in other
words, Butler was pushing for minimal government intervention in the economy.104
This idea of an individual mandate became the mainstay of Republican health
care reform proposals for the next twenty years. It featured prominently in President
George H.W. Bush’s 1991 plan, which stated that every citizen must “obtain a basic level

98
Avik Roy, THE TORTUOUS HISTORY OF CONSERVATIVES AND THE INDIVIDUAL MANDATE THE APOTHECARY (2012),
http://www.forbes.com/sites/theapothecary/2012/02/07/the-tortuous-conservative-history-of-the-individual-mandate/ (last visited Mar
26, 2015).
99
Id.
100
Id.
101
Alain C. Enthoven & Victor R. Fuchs, Employment-Based Health Insurance: Past, Present, And Future, 25 HEALTH AFF.
(MILLWOOD) 1538–1547, 1538–1539 (2006).
102
Avik Roy, supra note 99.
103
Id.
104
Ilya Somin, Lessons from the Rise of Legal Conservatism, 32 HARV. J. LAW PUBLIC POLICY 415–430, 416 (2009).
See also STEVEN M. TELES, supra note 5 at 11.

27

of health insurance.”105 In recognition of the difficulty that the mandated purchase of
coverage would impose on the indigent, Bush’s proposal subsidized health insurance for
the poor through tax credits.106 After a long hiatus, talk of expanding coverage was
finally returning to the national stage.
Following his election in 1992, President Bill Clinton hoped to turn this newfound
appetite for reform into action. It seemed that the time for comprehensive health
insurance had arrived. The business lobby, now under more centrist leadership, was
beginning to countenance the idea of an employer mandate in some form or another.107 In
March 1993, the Chamber ended its deliberations with a unanimous endorsement of
universal health coverage that required employers to pay half of employees’ health
insurance costs.108
Seven months later, the Clinton administration unveiled its plan to remake the
nation’s health care system. Unlike the original HSA, it relied heavily on private health
insurance plans.109 Consumers would select from nearly identical and highly regulated
plans on regional insurance purchasing cooperatives.110 While employees and employers
alike would pay some of the cost of insurance, the federal government would defray a
part of these expenses for the poor as well as for small firms.111 The Clinton HSA,
however, hit large companies with a tax as well as strict requirements for the operation of
their internal insurance markets, if they chose to opt out of the cooperatives.112

105
Mark V. Pauly et al., A plan for “responsible national health insurance,” 10 HEALTH AFF. (MILLWOOD) 5–25, 8 (1991).
106
Id. at 9.
107
See also THE PRESIDENCY OF BILL CLINTON: THE LEGACY OF A NEW DOMESTIC AND FOREIGN POLICY, 99 (Mark White ed., 2012).
108
109
JACOB HACKER, supra note 23 at 149.
110
Id. at 149-150.
111
Id. at 150.
112
Id.

28

As a result, the business lobby, which represents primarily large corporations,
soon lost whatever little enthusiasm it had had earlier for reform. The sociologist Paul
Starr, who worked for the president at this time, has blamed a sudden, unforeseen
“internal insurrection” for the Washington heavyweight’s reversal.113 What Starr does
not mention is the fact that, at the outset, Clinton did not enjoy the support of the business
lobby, which, despite its endorsement, had not believed that the administration had its
interests in mind.114
The president had other reasons to worry about the fate of his proposal. “Like the
New Deal, some aspects of health care reform are likely to be assailed in Congress and (if
enacted) in the courts as unconstitutional,” warned Walter Dellinger, the acting assistant
attorney general, in an internal memorandum.115 “Careful and creative legal advice,” he
predicted, would be critical “to the ability of the Department of Justice to defend health
care reform in any lawsuits that ensue.”116 With the economy weakening, public support
fading, and Republicans sensing an electoral victory in the offing, Dellinger’s words fell
on deaf ears, as the Clinton HSA went nowhere.117 Nonetheless, this lawyer had forecast
the myriad legal challenges that would dog the next Democratic administration.
In the meantime, Republicans continued to champion the individual mandate. In
2006, the Republican governor of Massachusetts, Mitt Romney, signed into law a bill that
required all Bay State residents to obtain coverage or else face a penalty.118 This was not

113
Paul Starr, What Happened to Health Care Reform?, THE AMERICAN PROSPECT, 2001, http://www.prospect.org/article/what-
happened-health-care-reform (last visited Mar 26, 2015).
See also JILL QUADAGNO, ONE NATION, UNINSURED: WHY THE U.S. HAS NO NATIONAL HEALTH INSURANCE 192 (2005).
114
115
Todd Ruger et al., Clinton Library Papers Show Kagan Dropping an F-Bomb, ROLL CALL, October 10, 2014,
http://www.rollcall.com/news/clinton_library_papers_show_kagan_dropping_an_f_bomb-237036-1.html?pg=1&dczone=news (last
116
Id.
117
118
John E. McDonough et al., The Third Wave Of Massachusetts Health Care Access Reform, 25 HEALTH AFF. (MILLWOOD) w420–
w431, w424 (2006).

29

the only way the legislation foreshadowed the PPACA. Besides its employer mandate,
which penalized companies for not contributing to the costs of employees’ health
insurance, it subsidized coverage for those earning three times the federal poverty or less
in two ways.119 It increased children’s eligibility for the state Medicaid program from
two times to three times the federal poverty level.120 In addition, it provided financial
assistance to purchase coverage on an insurance exchange similar to the cooperatives in
the Clinton HSA.121
The Chamber signaled its support of the Massachusetts model in January 2007.
For two and a half years, it had discussed reform with liberal advocacy organizations and
other major interest groups such as America’s Health Insurance Plans (AHIP), which
represents the health insurance industry.122 This strange group of bedfellows, known as
the Health Care Coalition for the Uninsured, called for subsidizing private insurance for
those earning 100-300% of the federal poverty level and expanding Medicaid to cover
people making less.123 This proposal differed from Romney’s plan only in that it lacked
exchanges and an individual mandate.124
In the next three years, the business lobby retreated from this endorsement of
reform, as both internal and external institutional concerns forced it to take a harder line
on what would become the PPACA. As one political scientist so nicely put it, the
Chamber “emerged as a vocal opponent” of the Act.125 That is to say, the Washington

119
Id. at w423-w426.
120
Id. at w426.
121
Id. at w423-w424.
122
See also Health Coverage Coalition for the Uninsured, PROPOSAL OF THE HEALTH COVERAGE COALITION FOR THE UNINSURED
PHYSICIANS FOR A NATIONAL HEALTH PROGRAM (2007), http://www.pnhp.org/news/2007/january/proposal-of-the-health-coverage-
coalition-for-the-uninsured (last visited Mar 27, 2015).
123
124
Id.
125
Jonathan Oberlander, Long Time Coming: Why Health Reform Finally Passed, 29 HEALTH AFF. (MILLWOOD) 1112–1116, 1115
(2010).

30

heavyweight was initially willing to stomach some form of an overhaul of the nation’s
health system. Indeed, on March 5, 2009 officials from the business lobby joined
members of Congress, labor leaders, doctors, and consumer advocates in the East Room
of the White House.126 The newly elected president was aiming in the words of one
journalist “to disarm—if not outright co-opt—potential opponents.”127 In this regard,
Obama seems to have succeeded. At the forum, the Chamber’s president, Tom Donahue,
emphasized that a “new day” for reform had come.128
Though no agreement came out of the East Room meeting, the interest group did
reveal its priorities in this debate two months later. In testimony before the Senate
Finance Committee on May 5, Bruce Josten, the Chamber’s executive vice president for
government affairs, urged legislators not to adopt an employer mandate and the public
option. The employer mandate struck the organization’s second-ranking officer as
problematic, because in his opinion it would burden many businesses with an obligation
they either could not meet or could meet more optimally in the absence of any
requirements.129 Josten, in other words, was helping the defender of American enterprise
complete an about-face, as it had backed an employer mandate in 1993, and, before that,
in 1971. The business lobby’s opposition to the public option, which would entail
creating a government-run health plan, conflicted less with its earlier positions. Just as

126
STAFF OF THE WASHINGTON POST, LANDMARK: THE INSIDE STORY OF AMERICA’S NEW HEALTH-CARE LAW AND WHAT IT
MEANS FOR US ALL 16 (2010).
127
Id.
128
Anonymous, Obama’s health care reform push, NEWSDAY, March 6, 2009, http://search.proquest.com/docview/280312510?pq-
origsite=summon (last visited Mar 27, 2015).
129
R. Bruce Josten, STATEMENT ON HEALTH CARE COVERAGE ON BEHALF OF THE U.S. CHAMBER OF COMMERCE (THE “CHAMBER”) 5
(2009).
See also U.S. Chamber of Commerce, R. BRUCE JOSTEN, https://www.uschamber.com/r-bruce-josten.

31

the Chamber had disapproved of Kennedy-Griffiths, it did not want to see the federal
government challenging the supremacy of private insurers in any way.130
Congress did not pay much attention to these concerns. The bill the United States
House of Representatives released on June 19 included both the public option and an
employer mandate.131 The legislation also drew the ire of the business lobby for two
other reasons. It would not only tax employee health benefits and therefore force
employers to raise wages but also give the regulatory state more power by having
government officials determine the appropriate level of benefits for health plans.132 On
July 15, the Senate Health, Education, Labor, and Pensions Committee passed a proposal
that also featured the public option and an employer mandate.133 Even though these bills
boasted traditionally conservative policy ideas such as an individual mandate and a
Medicaid expansion, Republicans and their allies began to man the opposition
barricades.134
Private health insurance companies, in particular, turned to the business lobby to
fight this new wave of threatening health care proposals. Aetna, CIGNA, Humana,
UnitedHealthcare, and Wellpoint, which together represented the Big Five for-profit
insurers, funneled some $86.2 million to the Chamber through AHIP in August.135 This
massive sum, Bloomberg revealed, “paid for advertisements, polling and grass roots

130
R. Bruce Josten, supra note 130 at 6.
131
Robert Pear & David M. Herszenhorn, House Unveils Health Bill, Minus Key Details, NEW YORK TIMES, June 20, 2009,
http://search.proquest.com/docview/1030690298/abstract/C42B64D60AD348D4PQ/1?accountid=13314 (last visited Mar 27, 2015).
132
U.S. Chamber of Commerce, U.S. CHAMBER RAISES CONCERNS WITH HOUSE HEALTH CARE REFORM BILL U.S. CHAMBER OF
COMMERCE (2009), https://www.uschamber.com/press-release/us-chamber-raises-concerns-house-health-care-reform-bill (last visited
Mar 27, 2015).
133
David M. Herszenhorn, SENATE COMMITTEE APPROVES HEALTH CARE BILL THE CAUCUS,
http://thecaucus.blogs.nytimes.com/2009/07/15/senate-committee-approves-health-care-bill/ (last visited Mar 27, 2015).
134
STEVEN BRILL, supra note 23 at 130.
135

32

events to drum up opposition” to reform.136 Although these insurers did not like many
provisions in the legislation making its way through Congress, the public option and the
guaranteed issue of plans to all, regardless of preexisting conditions, really irked them.137
The Chamber’s efforts on behalf of these companies, however, were for naught.
Though the Senate did away with the public option on December 24, scholars do not
identify the business lobby’s efforts as being the decisive factor.138 The interest group
lost in other ways as well, as winter slowly turned to spring. With the passage of the
PPACA in the House on March 21, 2010 the organization had failed to stop an employer
mandate, $500 billion in new taxes, cuts to Medicare, increased regulation of health
plans, and, in the opinion of the organization, insufficient cost containment measures as
well as ineffective tax credits for small businesses.139 These qualms with the legislation
did not end when the president signed the bill into law two days later.140 Were it not for
the tectonic shifts that Carole King had prophesized, the Chamber might have supported
the Act as it had Nixon’s proposal. But times had changed and so had the business lobby.

136
Drew Armstrong, HEALTH INSURERS GAVE $86 MILLION TO FIGHT HEALTH LAW BLOOMBERG.COM,
http://www.bloomberg.com/news/articles/2010-11-17/insurers-gave-u-s-chamber-86-million-used-to-oppose-obama-s-health-law (last
visited Feb 3, 2015).
137
138
Id. at 224-230.
See also Oberlander, supra note 126 at 1115–1116.
See also Vincent L. Frakes, Partisanship and (un)compromise: A Study of the Patient Protection and Affordable Care Act, 49 HARV.
J. LEGIS. 135–149, 137–138 (2012).
139
R. Bruce Josten, U.S. CHAMBER OF COMMERCE’S LETTER TO THE U.S. HOUSE OF REPRESENTATIVES OPPOSING H.R. 3590, THE
“PATIENT PROTECTION AND AFFORDABLE CARE ACT” 1–2 (2010).
140
In 2010, Skocpol forecast that, following the law’s passage, the Chamber would refuse “to join the overt conservative Republican
drumbeat for repeal.” The following chapter problematizes this prediction.
Theda Skocpol, The Political Challenges That May Undermine Health Reform, 29 HEALTH AFF. (MILLWOOD) 1288–1292, 1290–
1291 (2010).

33

Chapter 2
Courting Disaster: The Legal Campaign against the PPACA
I. THE CHAMBER OF COMMERCE AND THE COURTS
Introduction
It did not take long for the legal campaign against the new law to begin. A mere
seven minutes after the President put his signature on the PPACA on March 23, 2010,
attorneys general across the country filed suit against the Act on the grounds that it did
not pass constitutional muster.141 Ken Cuccinelli, the Republican attorney general of
Virginia, was the first to initiate legal proceedings with his action in the United States
District Court for the Eastern District of Virginia.142
Others soon joined the fray. The attorney general of the Sunshine State, Bill
McCollum, together with his counterparts from twelve other states, sued the federal
government in the United States District Court for the Northern District of Florida.143
Attorneys general were not alone in fighting the law. As the political scientists
Lawrence Jacobs and Theda Skocpol note, “Like gladiators suiting up for the next big
match, lawyers, foundations, and advocacy groups on the right and left had been
preparing for some time to argue legal cases about health care reform.”144 And these
interest groups were not intent on having their preparations go to waste.

141
THE HEALTH CARE CASE: THE SUPREME COURT’S DECISION AND ITS IMPLICATIONS, (Nathaniel Persily, Metzger, Gillian, &
Morrison, Trevor eds., 2013).
142
Anita Kumar & N. C. Aizenman, Appeals court dismisses Virginia’s health law challenge, THE WASHINGTON POST, September 8,
2011, http://www.washingtonpost.com/national/health-science/appeals-court-dismisses-virginias-health-law-
challenge/2011/09/08/gIQAB81xCK_story.html (last visited Jan 27, 2015).
143
THE HEALTH CARE CASE: THE SUPREME COURT’S DECISION AND ITS IMPLICATIONS, supra note 142 at 70.
144
LAWRENCE JACOBS & SKOCPOL, THEDA, HEALTH CARE REFORM AND AMERICAN POLITICS: WHAT EVERYONE NEEDS TO KNOW
(2012).

34

For this reason, it should come as no surprise that there was in the words of one
lawyer “a rush” of litigation by conservative advocacy groups.145 Unlike many of its
conservative counterparts, however, the U.S. Chamber of Commerce, which boasts of
being the world’s largest business federation, waited until the challenges reached the
appellate level before providing judges unsolicited advice through amicus briefs. Table 1
below shows exactly when and how the business lobby participated in the legal
campaign.
Table 1: The Chamber of Commerce’s Involvement in
the Legal Campaign against the PPACA
Date Action
April 4, 2011 Brief filed in the Fourth Circuit
April 11, 2011 Brief filed in the Eleventh Circuit
May 23, 2011 Brief filed in the District of Columbia
Circuit
August 12, 2011 Ruling issued by the Eleventh Circuit
September 8, 2011 Ruling issued by the Fourth Circuit
October 25, 2011 Supreme Court petitioned to review
Eleventh Circuit ruling
November 8, 2011 Ruling issued by the District of Columbia
Circuit
January 6, 2012 Brief filed in the Supreme Court
June 28, 2012 Ruling issued by the Supreme Court
Note: Data comes from the Chamber of Commerce (2015)
The Chamber’s involvement in the litigation over the PPACA merits attention,
not just because studying it helps elucidate how conservatives reshaped the health policy
landscape between March 23, 2010 and June 28, 2012. It also represents an ideal case of
legal mobilization by the powerful, a subject that jurists have still largely not addressed.
Most studies of legal action have concentrated, as the political scientist Michael McCann

145
THE HEALTH CARE CASE: THE SUPREME COURT’S DECISION AND ITS IMPLICATIONS, supra note 142 at 70.

35

puts it, “either on relatively powerless (‘ordinary’) individuals or on group efforts to
challenge prevailing elite institutions.”146
The legal mobilization literature is certainly replete with works that center on the
struggle of those without access to many resources. To give just one example, the fight
for civil rights for African-Americans waged by the National Association of Colored
People (NAACP) features prominently in the scholarship.147 This chapter will help
correct this deficiency by examining when, how, and why the Chamber intervened in the
legal campaign against the health care reform law.
In addition, this chapter will also shed light on how interest groups through
amicus curiae briefs influence judicial decision-making. The political scientist Paul
Collins has pointed to the need to scrutinize “how amicus briefs shape the content of
justices’ opinions” in not just any way, but “particularly with regard to the types of
arguments amici furnish in support of their positions.”148 To the extent that scholars have
appraised the impact of these filings on the Supreme Court’s decisions, they have done so
mainly by surveying a relatively large number of cases.149
This study will be unique in its singular focus on the health care litigation and the
role played by the amicus brief of the Chamber in it. Though jurists have examined the
impact of other filings on the health care ruling of the Supreme Court, they have yet to
determine how the business lobby’s amicus brief and the arguments advanced in it

146
McCann, supra note 12.
147
CLEMENT VOSE, CAUCASIANS ONLY: THE SUPREME COURT, THE NAACP, AND THE RESTRICTIVE COVENANT (1959).
See also MARK TUSHNET, THE NAACP’S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987).
148
COLLINS, supra note 11 at 183–184.
149
LEE EPSTEIN & JOSEPH KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY (1992).
See also James F. Spriggs & Paul J. Wahlbeck, Amicus Curiae and the Role of Information at the Supreme Court, 50 POLIT. RES. Q.
365–386 (1997).
See also SUZANNE SAMUELS, FIRST AMONG FRIENDS: INTEREST GROUPS, THE U.S. SUPREME COURT, AND THE RIGHT TO PRIVACY
(2004).
See also Pamela Corley, Collins, Paul & Hamner, Jesse, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion
Content, 1–31 (2013).

36

shaped not just the majority opinion but also the dissents.150 Beyond that, this study will
extend this method of analysis to the lower levels of the federal judiciary, where the
effect of amicus briefs on decisions also remains understudied.151
With these facts clear, it is possible to specify how the chapter will proceed. To
investigate how the Chamber involved itself in the legal campaign against the PPACA,
this study will rely on newspaper articles, magazine features, press releases, and
historical accounts of the litigation. These sources leave no doubt that the business
lobby’s litigation against the law began on April 4, 2011 and ended on June 28, 2012. In
those fifteen months, the organization participated in three cases in four jurisdictions. In
utilizing this data, this chapter, like other work on legal mobilization, will recognize the
contingent and complementary nature of legal action.152 Litigation represents just one
front in a larger war between different social groups, and as such does not march toward
some inevitable end.
And to determine how the business lobby swayed the courts, this study will
examine the decisions of the Supreme Court, the appellate courts for the Eleventh and
District of Columbia circuits, and the Chamber’s filings in those jurisdictions. Though the
Chamber also submitted an amicus brief to the United States Court of Appeals for the
Fourth Circuit, the decision of that body will receive scant attention, as it mainly
concerns a procedural issue not discussed by the business group in its brief. Fortunately,
the other rulings more clearly bear the marks of the NCLC, the organization’s legal arm.

150
Scott, supra note 9 at 4–6.
151
Id. at 50-52.
152
McCann, supra note 12.

37

This study will follow tradition and use in-depth analysis of the text of each
opinion to illuminate the influence of this interest group.153 This method is well suited to
the matter at hand, as with only one case to examine the human eye can detect subtleties
that escape even the most sophisticated software.154 As with other studies, this chapter
will look to language, not citation, as evidence of borrowing from the briefs of the
business lobby.155
Together, these two sets of data and methods of analysis will make clear how
conservatives, the Chamber in particular, reshaped the American health policy landscape
between March 23, 2010 and June 28, 2012. The business lobby pursued a strategy of
“light-touch” litigation: it nudged judges in what it saw as the right direction only when
absolutely necessary. Of course, the Chamber did not act in isolation. It worked in
tandem with other interest groups, and recalibrated its arguments in response to rulings,
favorable or otherwise.
The organization sat out the initial challenges to the health care reform law at the
district level, because its involvement in the litigation appeared unnecessary.
Organizations such as the socially conservative Family Research Council (FRC) were
already advising courts not to separate the individual mandate in Section 1501 of the
PPACA from the rest of the law. Furthermore, arguments against President Obama’s
signature domestic policy achievement seemed destined to succeed in the largely
conservative forums selected by the challengers.
But even with the work of the FRC, a split emerged in the district courts over the
issue of severability, and the business lobby felt compelled to pick a side and intervene at

153
Corley, Collins, Paul, and Hamner, Jesse, supra note 150 at 2.
154
Id. at 11.
155
Id. at 4.
See also COLLINS, supra note 11 at 8.

38

the appellate level. Though the Chamber does not always see eye-to-eye with the FRC,
the NCLC built on the Christian’s group arguments. It couched the otherwise fringe legal
theories of the religious right in the respectable language of business. This disguise
fooled few, even in the extremely business-friendly jurisdictions picked by the business
lobby.
Though the challenges in the Eleventh and District of Columbia circuit courts
may have been the most legitimate, the same cannot be said of the arguments advanced
by the Chamber in those forums. This likely explains why the judges in the District of
Columbia Circuit made sparing use of the NCLC brief. Though the filing paradoxically
helped the majority uphold the individual mandate, it hardly figured in Judge
Kavanaugh’s dissent. And while the Eleventh Circuit dealt at greater length with the
relationship between Section 1501 and the rest of the PPACA, it too left the business
lobby with little to show for its efforts. The Atlanta appellate court demolished the
arguments of the NCLC, as a majority of the judges severed Section 1501 from the rest of
the law. To make matters worse, Judge Marcus employed the Chamber’s reasoning in his
dissent not to strike down the entire law, but rather to attest to the necessity and thus
constitutionality of the individual mandate.
In the face of such a stunning defeat, the business lobby reformulated its position.
It took the fiery rhetoric once found only in its press releases and integrated it into its
amicus briefs, as the legal jargon was not working. In asking for the nation’s highest
court to hear the case, the Chamber stressed the need to resolve this dispute immediately,
given the legal and economic uncertainty it was creating. Of course, the organization left
out the fact that it was helping to foment this uncertainty by contributing to the

39

challenges to the health care reform law. Though the Court did not take note of this
peculiarity, it did grant the Chamber’s request, as it often does.
This approval, however, did not hint at deeper policy agreement. The majority
opinion is so striking, because Chief Justice Roberts, to the small extent that the
discussed the arguments of the Chamber, dismissed them. This is the same man who in
his earlier days as a lawyer had authored an amicus brief on behalf of the NCLC. Justice
Ginsburg, herself a less well-know partisan of business, added insult to injury by using
the organization’s logic to defend the constitutionality of Section 1501. Only Justice
Scalia stayed completely true to his pro-business leanings. In borrowing heavily from the
NCLC brief to strike down the law in its entirety, he enshrined the once fringe legal
theories of the religious right in the grand pantheon of American jurisprudence. Perhaps
even more frightening is the fact that this dissent, which reeks of the Chamber, will
forever haunt those who wish to use the state to ameliorate social ills.
Background
It is difficult to understand the Chamber’s involvement in the legal campaign
against President Obama’s signature domestic policy achievement without situating the
powerful organization in the wider conservative context and its actions as an amicus
curiae in the literature on the relationship between the business lobby and the courts.
Though conservative organizations were united in their opposition to the PPACA,
they were divided in their ideology. A close analysis of the litigation surrounding the
health care reform law shows that there were three brands of conservatism in the
proceedings: libertarianism, social conservatism, and business conservatism. Libertarian

40

organizations such as the Cato Institute attacked the law as a violation of the right to
personal discretion in economic matters.156 In this respect, the Cato Institute differed
from the FRC and other social conservative groups, which saw the Act as more of a
threat to religious than economic liberty.157
Whereas the Cato Institute and the FRC fought the health care reform effort on
largely philosophical grounds, business conservative groups concerned themselves with
what they took to be the deleterious effects of the law on the companies they represented.
The NFIB, the self-styled defender of small businesses, for instance, acted to protect its
members from in its words “the costs, the burdens and the impositions” of the PPACA.158
Likewise, the Chamber, which describes itself as the world’s largest business federation,
couched its opposition in terms of saving American enterprise in particular and the
American economy in general from job-killing and growth-chilling regulations.159
While the Chamber’s clientele does not differentiate it from other business
conservative organizations, its immense power does. In 1995, a study by an affiliate of
the business lobby found that the group represented “about 215,000 private enterprises,
3,000 local and state chambers of commerce and 1,200 trade and professional

156
Id. at 8.
See also Ilya Shapiro, WE WON EVERYTHING BUT THE CASE SCOTUSBLOG, http://www.scotusblog.com/2012/06/we-won-everything-
but-the-case/ (last visited Feb 8, 2015).
157
Ken Klukowski, FAMILY RESEARCH COUNCIL: ADVANCING FAITH, FAMILY, AND FREEDOM IN AMERICA’S COURTS FAMILY
RESEARCH COUNCIL, http://www.frc.org/issueanalysis/family-research-council-advancing-faith-family-and-freedom-in-americas-
courts.
158
National Federation of Independent Businesses, HEALTHCARE LAWSUIT NATIONAL FEDERATION OF INDEPENDENT BUSINESS,
SMALL BUSINESS LEGAL CENTER, http://www.nfib.com/foundations/legal-center/healthcare-lawsuit/.
159
U.S. Chamber of Commerce, National Chamber Litigation Center, U.S. CHAMBER TAKES HEALTH CARE FIGHT TO THE COURTS
U.S. CHAMBER OF COMMERCE (2011), https://www.uschamber.com/press-release/us-chamber-takes-health-care-fight-courts.
See also U.S. Chamber of Commerce, ABOUT THE U.S. CHAMBER, https://www.uschamber.com/about-us/about-us-chamber.

41

associations.”160 By 2001, these numbers had dwindled down to 850 trade associations,
2,800 local and state chambers of commerce, and 150,000 companies.161
Though it is unclear what exactly drove the decline, part of the reason seems to do
with the fact that all members do not have equal say in the organization. The Chamber’s
leadership answers to a board of 118 directors, whom sitting board members elect.162 In
2009, while most sitting board members spoke on behalf on large corporations, only one
represented a local chamber of commerce.163 Little has changed since then.164 Given that
this is the case, it does not seem far-fetched to conclude that the business lobby serves
primarily the interests of large corporations, not the state and local affiliates over which it
exercises virtually no control.165 In this regard, the Chamber mirrors many business
groups, which, by and large, advocate on behalf of the nation’s leading firms.166
This organization, however, dominates the political scene to a far greater extent
than its counterparts. In 2003, the magazine National Journal left no doubt about this
fact, when it observed, “For nearly a century, no business-lobbying group has had a
higher profile in Washington than the U.S. Chamber of Commerce.”167 This view of the
Chamber is not limited to the popular press. Professor Alyssa Katz at New York
University has dubbed the business lobby “The Influence Machine.”168 Indeed, between

160
MARKUS PILGRIM & RALF MEIER, NATIONAL CHAMBERS OF COMMERCE: A PRIMER ON THE ORGANIZATION AND ROLE OF
CHAMBER SYSTEMS 14 (1995).
161
Josh Harkinson, THE CHAMBER’S NUMBERS GAME MOTHER JONES, http://www.motherjones.com/environment/2009/10/chamber-
commerce-smaller-it-appears (last visited Feb 9, 2015).
162
Id.
163
Id.
164
The Chamber of Secrets, THE ECONOMIST, 2012, http://www.economist.com/node/21553020 (last visited Feb 9, 2015).
See also U.S. Chamber of Commerce, BOARD OF DIRECTORS U.S. CHAMBER OF COMMERCE, https://www.uschamber.com/about-
us/board-directors.
165
Harkinson, supra note 163.
166
David Jacobs, Labor and Social Legislation in the United States: Business Obstructionism and Accommodation, 23 LABOR STUD. J.
52–73, 56–59 (1998).
167
Shawn Zeller, Tort reform’s massive war chest, 35 NATIONAL JOURNAL, 2003, at 1008.
168
ALYSSA KATZ, THE INFLUENCE MACHINE: THE U.S. CHAMBER OF COMMERCE AND THE CORPORATE CAPTURE OF AMERICAN LIFE
(Forthcoming).

42

1998 and 2013 alone, the group set a record by spending over $1 billion lobbying.169 In
that fifteen-year span, the expenditures of the next highest spender, General Electric,
totaled “only” $293 million.170 The business lobby’s political might is second only to its
legal might.
To date, scholars have largely focused on quantifying the Chamber’s tremendous
success before the Supreme Court. They have surveyed Supreme Court clerks and found
that the amicus briefs of the NCLC always receive closer attention.171 In addition, it has
come to light that the Supreme Court not only hands the business lobby victories at an
extraordinarily high rate but also frequently grants the NCLC’s requests for review.172
This study, in contrast, addresses qualitatively the following questions concerning
the influence of the business lobby on the shaping of policy at all levels of the federal
judiciary. How did the Chamber fare in different appellate courts in the health care
litigation? Why did the interest group select these forums? What accounts for the
organization’s success or lack thereof in these jurisdictions? Which courts relied most
heavily on the NCLC brief and to what effect?
This chapter answers each of these questions in turn. The first section introduces
three of the twenty challenges that were making their way through federal courts and
explains why the Chamber did not intervene at the district level. The second section
outlines how the business lobby participated in those three challenges at the appellate
level. It connects the NCLC brief to the FRC, and makes clear that although the business

169
David Steinbach, BILLION DOLLAR BABY: U.S. CHAMBER IS FIRST TO HIT LOBBYING MILESTONE OPENSECRETS BLOG,
http://www.opensecrets.org/news/2013/07/billion-dollar-baby-us-chamber-is-first-to-hit-lobbying-milestone/ (last visited Feb 10,
2015).
170
Id.
171
Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J. LAW POLIT. 33–75, 50 (2004).
172
See also Adam Chandler, CERT.-STAGE AMICUS “ALL STARS”: WHERE ARE THEY NOW? SCOTUSBLOG (2013),
http://www.scotusblog.com/2013/04/cert-stage-amicus-all-stars-where-are-they-now/ (last visited Feb 24, 2015).

43

organization notched no victories at this stage, the interest group did fare better in the
Eleventh Circuit than in the District of Columbia Circuit. The next section problematizes
the NCLC’s request for Supreme Court review of the Eleventh Circuit ruling by showing
that the Chamber was in arenas other than the courts fomenting uncertainty about the Act.
The final section examines the decision of the nation’s highest court. It highlights how
the business lobby failed to sway the business-friendly majority and paradoxically helped
Justice Ginsburg uphold the individual mandate. Lastly, it points out that the NCLC
gained the most traction in Justice Scalia’s dissent, a result with frightening consequences
for the regulatory state.
II. DISTRICTS DIVIDED
In the initial phase of the PPACA litigation, the Chamber’s arguments met with
little success, because even with organizations such as the FRC arguing against severing
Section 1501 from the rest of the law, judges struggled to fathom the connection between
the individual mandate and the other health insurance industry reforms. Though the
challenges made their way through the courts at roughly the same time, the
contemporaneous nature of the litigation did not guarantee that judges took notice of
what was occurring in jurisdictions other than their own.
A comparison of the ruling of the Eastern District Court of Florida with that of the
Northern District Court of Florida underscores this point. Despite the fact that the FRC
filed its amicus brief in the Florida court nearly a month before the Virginia ruling, the
court in the Old Dominion still chopped Section 1501 off from the rest of the law.
Although the Christian group succeeded in swaying the court in the Sunshine State, this

44

triumph does not change the fact that the business lobby should have intervened at this
stage. With its wealth of resources, the Chamber had no excuse for not further bolstering
the FRC’s case in largely conservative forums.
A close analysis of the lawsuit brought by Cuccinelli shows this to be the case.
The former private attorney chose to file in the Eastern District Court of Virginia not just
because he had appeared before it numerous times.173 The shrewd litigator selected this
forum, because the conservative Judge Robert Payne, appointed by President George H.
W. Bush in 1992, presided over it.174 When Payne recused himself from the case, another
conservative judge by the name of Henry Hudson, himself appointed by President George
W. Bush in 2002, took over.175 Cuccinelli could almost certainly count on Hudson to
decide in his favor.
Hudson did not disappoint. The attorney general of Virginia had challenged the
constitutionality of the individual mandate on two grounds. First, he alleged that
Congress had overstepped by requiring individuals to purchase health insurance or else
pay an exaction.176 The Constitution gives Congress the power “to regulate Commerce”
among “the several States.”177 In Cuccinelli’s view, since failure to buy health insurance
did not constitute economic activity, Congress lacked the authority to regulate such
behavior under the so-called Commerce Clause.178 Beyond that, the attorney general
argued, the Constitution did not permit Congress to put a penalty on inactivity, as Section
1501 of the PPACA did.179

173
Joshua Hersh, Cuccinelli’s War, THE NEW REPUBLIC, 2011,
http://www.newrepublic.com/article/politics/magazine/85327/cuccinelli-virginia-health-care-tea-party (last visited Jan 27, 2015).
174
JOSH BLACKMAN, UNPRECEDENTED: THE CONSTITUTIONAL CHALLENGE TO OBAMACARE 85 (2013).
175
Id.
176
Commonwealth ex rel. Cuccinelli v. Sebelius, 728 F.Supp.2d 768 (E.D. Va. 2010).
177
U.S. Const. art. I, § 8, cl. 3.
178
Commonwealth of Virginia, 728 F.Supp.2d at 771-772.
179
Id.

45

Cuccinelli’s second line of attack centered on the Virginia Health Care Freedom
Act (VHCFA). This 2010 Virginia state law forbid the state and federal government from
enforcing the individual mandate.180 To Cuccinelli, Section 1501 amounted to the federal
government robbing the Virginia state government of the police power to look after the
health, safety, and welfare of its citizens.181 Furthermore, he asserted, the federal
government was impinging on the sovereignty of the Commonwealth by giving
Virginians orders that conflicted with those of the Old Dominion. Lastly, given that the
Tenth Amendment to the Constitution reserved powers not delegated to the federal
government for the states, the individual mandate had no explicit constitutional basis.182
Though Hudson agreed with Cuccinelli on the Commerce Clause, he did not
produce a ruling that pleased the Chamber and the FRC. In his December 12, 2010
decision, Hudson struck down the individual mandate on the grounds that Congress under
the Commerce Clause could not coerce individuals into economic activity.183
Nevertheless, his ruling did not satisfy all conservatives. At the end of his
decision, he wrote, “The Court will sever Section 1501 from the balance of the ACA.”184
This ran directly counter to what the FRC had argued in its November 19, 2010 amicus
brief for the Northern District Court of Florida.185 The filing had left no doubt that the
individual mandate in the words of the conservative Christian group “cannot be severed
from the remainder of the Act.”186 This disjuncture between the FRC’s arguments in one
jurisdiction and the ruling of another brings two matters to light. First, Hudson does not

180
McDonnell Signs Health Care Freedom Act, http://www.nbc29.com/story/12198281/mcdonnell-signs-health-care-freedom-act (last
visited Jan 27, 2015).
181
Commonwealth of Virginia, 728 at 772.
182
Id.
183
Id. at 774.
184
Id. at 790.
185
Brief for the Family Research Council as Amicus Curiae, p. 12, Florida v. United States HHS, 780 F.Supp.2d 1256 (2011).
186
Id. at 2.

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