Amicus Curiae Brief — Oklahoma, Petitioner v. Department of Health and Human Services, et al.

No. 24-437

In the

Supreme Court of the United States

OKLAHOMA,

Petitioner,

v.

DEPARTMENT OF HEALTH

AND HUMAN SERVICES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Tenth Circuit

Brief Of Amici Curiae Advancing American Freedom;

A lliance for Law and Liberty; AMAC Action; American

Values; A nglicans for Life; Association of Mature

American Citizens; Center for Urban Renewal and

Education (CURE); Coalition for Jewish Values;

Concerned Women for America; Democrats for Life;

(For continuation of Midline, see Inside Cover)

J. Marc Wheat

Counsel of Record

Timothy Harper

A dvancing A merican Freedom, Inc.

801 Pennsylvania Avenue, N.W.,

Suite 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancing

americanfreedom.com

November 18, 2024

130617

A

(800) 274-3321 • (800) 359-6859

Charlie Gerow; Heartbeat International; Idaho

Freedom Foundation; International Conference of

Evangelical Chaplain Endorsers; Tim Jones, Former

Speaker , Missouri House of Representatives, Chairman,

Missouri Center-Right Coalition; Lutheran Center for

Religious Liberty; Maryland Family Institute; Men and

Women for a Representative Democracy in America,

Inc.; Men for Life; National Center for Public

Policy Research; North Carolina Values Coalition;

Orthodox Jewish Chamber Of Commerce; Melissa Ortiz,

Principal & Founder , Capability Consulting; Palmetto

Promise Institute; Project 21 Black Leadership

Network; Setting Things Right; 60 Plus Association;

Paul Stam, Former Speaker Pro Tem, North Carolina

House of Representatives; Stand for Georgia Values

Action; Students for Life of America; The American

Association of Senior Citizens; Tea Party Patriots

Action; The Family Foundation of Virginia; Tradition,

Family, Property, Inc.; Wisconsin Family Action, Inc.;

Women for Democracy in America, Inc.; and Young

America’s Foundation in Support of Petitioner

i

QUESTIONS PRESENTED

1. Whether a federal agency, through regulations,

can impose upon states a funding condition that satisfies

the Spending Clause when the underlying statute does

not contain or is ambiguous as to that condition.

2. Whether the Weldon Amendment prohibits

the federal government from requiring a state’s health

department to provide abortion referrals.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST OF A MICI

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Spending Condition at Issue in

This Case is Beyond the Enumerated

Powers of Congress . . . . . . . . . . . . . . . . . . . . . . . . 5

II. The Spending Condition at Issue in

This Case is not Necessary or Proper

for the Exercise of any of the Federal

Government’s Enumerated Powers . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Davis v. Monroe County Bd. of Educ.,

526 U.S. 629 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Dobbs v. Jackson Women’s Org.,

597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Gibbons v. Ogden,

22 U.S. 1 (1824) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Gonzales v. Raich,

545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

McCulloch v. Maryland,

17 U.S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8, 9

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

Planned Parenthood of Southeastern Pa. v.

Casey,

501 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Comstock,

560 U.S. 126 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Const. amend. X . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

U.S. Const. art. I, § 8, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . 5

U.S. Const. art. I, § 8, cl. 18 . . . . . . . . . . . . . . . . . . . . . . . 7

Statutes

Consolidated Appropriations Act, 2005, Pub. L.

No. 108-447, div. F, § 508(d), 118 Stat. 2809

(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other Authorities

86 Fed. Reg. 56,144 (Oct. 7, 2021) . . . . . . . . . . . . . . . . . . . 3

Richard A. Epstein, The Proper Scope of the

Commerce Power, 73 Va. L. Rev. 1387 (1987) . . . . . . 8

Edwin J. Feulner, Jr., Conservatives Stalk the

House: The Story of the Republican Study

Committee (Green Hill Publishers, Inc. 1983) . . . . . 1

Philip Hamburger, Purchasing Submission:

Conditions, Power, and Freedom (Harvard

University Press 2021) . . . . . . . . . . . . . . . . . . . 2, 4, 5, 6

v

Cited Authorities

Page

Gary S. Lawson, The Rise and Rise of the

Administrative State, 107 Harv. L. Rev.

(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1

STATEMENT OF INTEREST OF AMICI CURIAE

Advancing American Freedom (AAF) is a nonprofit

organization that promotes and defends policies that

elevate traditional American values, including equal

treatment before the law.1 AAF “will continue to serve as

a beacon for conservative ideas, a reminder to all branches

of government of their responsibilities to the nation,” 2

and believes that America’s system of constitutional

government, unique in the world, must be preserved

and restored for the sake of American freedom. As the

Founders understood, liberty depends on the proper

balance of power among the people, their local and state

governments, and the federal government. AAF files this

brief on behalf of its 1,942 members in Oklahoma and its

8,400 members in the Tenth Circuit.

Amici Alliance for Law and Liberty; AMAC Action;

American Values; Anglicans for Life; Saulius “Saul”

Anuzis, President, The American Association of Senior

Citizens; Association of Mature American Citizens; Center

for Urban Renewal and Education (CURE); Coalition for

Jewish Values; Concerned Women for America; Democrats

for Life; Charlie Gerow; Heartbeat International;

Idaho Freedom Foundation; International Conference

1. All parties received timely notice of the filing of this

brief. No counsel for a party authored this brief in whole or in

part. No person other than Amicus Curiae and its counsel made

any monetary contribution intended to fund the preparation or

submission of this brief.

2. Edwin J. Feulner, Jr., Conservatives Stalk the House:

The Story of the Republican Study Committee, 212 (Green Hill

Publishers, Inc. 1983).

2

of Evangelical Chaplain Endorsers; Tim Jones, Fmr.

Speaker, Missouri House of Representatives, Chairman,

Missouri Center—Right Coalition; Lutheran Center for

Religious Liberty; James L. Martin, Founder/Chairman,

60 Plus Association; Jenny Beth Martin—Honorary

Chairman, Tea Party Patriots Action; Maryland Family

Institute; Men and Women for a Representative Democracy

in America, Inc.; Men for Life; National Center for Public

Policy Research; North Carolina Values Coalition;

Orthodox Jewish Chamber Of Commerce; Melissa Ortiz,

Principal & Founder, Capability Consulting; Palmetto

Promise Institute; Project 21 Black Leadership Network;

Setting Things Right; Paul Stam, Former Speaker Pro

Tem, North Carolina House of Representatives; Stand

for Georgia Values Action; Students for Life of America;

The Family Foundation of Virginia; Tradition, Family,

Property, Inc.; Wisconsin Family Action, Inc.; Women

for Democracy in America, Inc.; and Young America’s

Foundation believe that the Constitution’s limits on federal

power are essential to the preservation of American

liberty and prosperity.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Congress and the administrative state, sometimes

at congressional direction and other times not, use

the Federal Government’s power of the purse as an

“unconstitutional pathway for control.” 3 The Federal

Government’s use of spending as a means of control

“without concern for the [balance between state and

3. Philip Hamburger, Purchasing Submission: Conditions,

Power, and Freedom 5 (Harvard University Press 2021).

3

federal power], has the potential to obliterate distinctions

between national and local spheres of interest and power

by permitting the Federal Government to set policy in

the most sensitive areas of traditional state concern,

areas which otherwise would lie outside its reach.” Davis

v. Monroe County Bd. of Educ., 526 U.S. 629, 655 (1999)

(Kennedy, J., dissenting).

That is exactly what happened here. The United States

Department of Health and Human Services (HHS) sought

to use federal funding as a club to force Oklahoma’s staterun health service to refer pregnant women to a hotline

that would provide information about abortion, among

other things. The Weldon Amendment is an appropriations

rider that, in effect, prohibits HHS from discriminating

against recipients based on their refusal to provide or

refer to abortion services. Consolidated Appropriations

Act, 2005, Pub. L. No. 108-447, div. F, § 508(d), 118 Stat.

2809, 3163 (2004) The HHS policy is the current iteration

of a decades-long back and forth action on HHS’s part

(requiring and then not requiring and then requiring

again) Title X recipients to provide information related to

abortion. Cert. Pet. at 5-6. However, the rule’s preamble,

consistent with the Weldon Amendment, clarifies that

“objecting providers or Title X grantees are not required

to counsel or refer for abortions.” 86 Fed. Reg. 56,144 at

56,153 (Oct. 7, 2021).

After this Court’s decision in Dobbs v. Jackson

Women’s Org., 597 U.S. 215 (2022), a 1907 Oklahoma

law that prohibits advising women to obtain an abortion

became enforceable again. Cert. Pet. at 7. This law

advances the State’s legitimate interest in the life and

health of both mothers and their unborn children. The

4

Oklahoma State Department of Health (OSDH) notified

HHS that it could no longer provide the demanded

abortion referrals and information because of this State

law. Id. at 8. In response, HHS withdrew millions of dollars

in Title X funding. Id. at 8-9. This case concerns whether

federal funds will continue to be withheld.

The Federal Government possesses only limited and

enumerated powers. The Constitution grants Congress no

independent spending power. Rather, Congress’s power to

spend is derivative of its enumerated powers. Thus, when

the Federal Government attempts to use conditions on its

spending as a means of accomplishing what it otherwise

could not, it exceeds its constitutional authority. Such

“unconstitutional pathway[s] of control”4 are widespread.

Here the harm to constitutional interests including

federalism and conscience rights demonstrate the harm

that can be caused when the Federal Government acts

outside of the carefully crafted boundaries the Constitution

imposes on it. The Court should grant certiorari and rule

for Petitioner to protect the Constitution and the liberty

of the people it exists to secure.

ARGUMENT

The government of the United States, created by the

Constitution, is “one of enumerated powers.” McCulloch

v. Maryland, 17 U.S. 316, 405 (1819). An “enumeration

of powers is also a limitation of powers, because ‘[t]he

enumeration presupposes something not enumerated.’”

Gibbons v. Ogden, 22 U.S. 1, 9 (1824). That fact was made

explicit by the ratification of the Tenth Amendment:

4. Hamburger, supra note 3 at 5

5

“The powers not delegated to the United States by the

Constitution . . . are reserved to the States respectively,

or to the people.” U.S. Const. amend X. Thus, all federal

action must grow directly out of one of its specified

powers. Because HHS’s condition on Title X spending

at issue in this case is not an exercise of one of the

Federal Government’s limited powers, it is an instance

of unconstitutional overreach that justifies granting

Oklahoma’s petition for certiorari.

I.

The Spending Condition at Issue in This Case is

Beyond the Enumerated Powers of Congress.

Congress has no independent spending power

unmoored from its enumerated powers. But see,

e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

519, 577 (2012). Article I grants Congress the power

“[t]o lay and collect Taxes, Duties, Imposts and Excises,

to pay the Debts and provide for the common Defense and

general welfare of the United States.” U.S. Const. art. I

§ 8 cl. 1. As Professor Phillip Hamburger has explained,

during the constitutional convention, Gouverneur Morris

“wanted a general spending power,” but “knew he could

not accomplish this openly.”5 He thus replaced the comma

after “Excises” with a semicolon while on the Committee

of Style. The convention noticed the change and reverted

the punction to a comma, making it “abundantly clear that

the phrase about ‘providing for . . . general welfare’ was

merely a limitation on the taxing power, not a spending

power.”6

5. Hamburger, supra note 3 at 77.

6. Id.

6

Because Congress lacks an independent spending

power, its myriad uses of federal funds to accomplish

things not within its delegated powers comprise an

“unconstitutional pathway of control.” 7 This often comes

in the form of conditions imposed on recipients of federal

funds. Conditions are reasonable and necessary when they

“define what government is lawfully buying or supporting

with a grant.”8 However, “regulatory conditions are those

that substitute for statutes in regulating Americans.” 9

Professor Hamburger suggests several examples of factors

that may demonstrate that a condition is regulatory,

including that they are “disproportionately large,

nongermane, or otherwise ‘off.’”10 Fundamentally, when

Congress or the administrative state11 uses conditions to

accomplish what they could not accomplish directly, they

illegitimately circumvent the Constitution and its carefully

defined limits on federal power, threatening the liberty of

the people with death by a thousand cuts.

7. Id. at 5.

8. Id. at 61.

9. Id. at 63.

10. Id.

11. Here, the condition was not imposed by Congress but

by HHS which claims that Congress delegated power to it to

impose that condition. As Oklahoma rightly argues, that claim

is inconsistent with clear statutory law and with this Court’s

precedent regarding conditions on federal spending. As this

brief argues, even if HHS was right about Congress’s intent, the

delegation would have been illegitimate in part because it would

constitute a delegation of power Congress itself does not have.

7

Neither Congress nor the administrative state could

impose the Title X abortion referral condition at issue in

this case as an exercise of one of Congress’s enumerated

powers. Because the condition is also neither a necessary

nor a proper exercise of one of its enumerated powers, it

is unconstitutional.

II. The Spending Condition at Issue in This Case is

not Necessary or Proper for the Exercise of any of

the Federal Government’s Enumerated Powers.

Article I grants Congress the power to enact laws that

are “necessary and proper for carrying into execution”

its other enumerated powers. U.S. Const. art. I, § 8, cl.

18. The Necessary and Proper Clause “does not license

the exercise of any ‘great substantive and independent

power[s]’ beyond those specifically enumerated.”

Sebelius, 567 U.S. at 559 (quoting McCulloch, 17 U.S. at

411). “Congress must exercise its authority under the

Necessary and Proper Clause in a manner consistent with

the basic constitutional principles.” Gonzales v. Raich, 545

U.S. 1, 52 (2005) (O’Connor, J. dissenting) (citing Garcia

v. San Antonio Metro. Transit Auth., 469 U.S. 528, 585

(1985) (O’Connor, J., dissenting)). That clause is not “a

pretext . . . for the accomplishment of objects not entrusted

to the government.” Raich, 545 U.S. at 66 (Thomas, J.,

dissenting) (quoting McCulloch, 17 U.S. at 423) (internal

quotation marks omitted).

Rather, “the Necessary and Proper Clause is exceeded

. . . when [congressional action] violates the background

principle of enumerated (and hence limited) federal

power.” Sebelius, 567 U.S. at 653 (Scalia, J., dissenting).

The Necessary and Proper Clause merely “ensure[s]

8

that the Congress shall have all means at its disposal

to reach the heads of power that admittedly fall within

its grasp . . . Congress shall not fail because it lacks the

means of implementation.”12 Necessary and proper means

necessary and proper. The scope of the powers vested by

the clause is limited by “the word ‘proper’ [which] in this

context requires executory laws to be distinctively and

peculiarly within the jurisdictional competence of the

national government—that is, consistent with background

principles of separation of powers, federalism, and

individual rights.”13

Even Chief Justice John Marshall, in his famous

explication of the clause, generally taken to be an

expansive reading, demanded that the “means . . . consist

with the letter and spirit of the constitution.” McCulloch

v. Maryland, 17 U.S. 17 U.S. 316, 421 (1819). As Justice

Thomas has explained, McCulloch created a two-part test

for compliance with the Necessary and Proper Clause:

First, the law must be directed toward a

“legitimate” end, which McCulloch defines as

one “within the scope of the [C]onstitution”—

that is, the powers expressly delegated to

the Federal Government by some provision

in the Constitution . . . Second, there must

be a necessary and proper fit between the

“means” (the federal law) and the “end” (the

enumerated power or powers) it is designed to

12. Richard A. Epstein, The Proper Scope of the Commerce

Power, 73 Va. L. Rev. 1387, 1397-98 (1987).

13. Gary S. Lawson, The Rise and Rise of the Administrative

State, 107 Harv. L. Rev. 1231, 1234-35 (1994) (emphasis added).

9

serve . . . The means Congress selects will be

deemed “necessary” if they are “appropriate”

and “plainly adapted” to the exercise of an

enumerated power, and “proper” if they are not

otherwise “prohibited” by the Constitution and

not “[in]consistent” with its “letter and spirit.”

United States v. Comstock, 560 U.S. 126, 160-61 (2010)

(Thomas, J., dissenting) (alteration in original) (quoting

McCulloch, 17 U.S. at 421). Both the letter and the spirit of

the Constitution require congressional exercises of power

under the clause to be consistent with basic constitutional

principles.

Congress’s necessary and proper power is limited by

the word “proper,” “that is, consistent with background

principles of separation of powers, federalism, and

individual rights.”14 The condition at issue in this case is

not consistent with the principle of federalism that is so

fundamental to American constitutional structure.

The regulation of healthcare is an area of traditional

state power. The states have an interest in the well-being

of both mothers and their unborn children. As this Court

has explicitly recognized for at least three decades, States

have a legitimate interest in protecting the life of the

unborn. See Planned Parenthood of Southeastern Pa. v.

Casey, 501 U.S. 833, 871 (1992); Dobbs, 597 U.S. at 26263. The representatives of the State of Oklahoma voted to

protect that interest and the State’s officials here sought to

respect that decision. Yet HHS, by requiring States that

accept this Title X funding to refer pregnant women to

14. Id.

10

sources that would inform women about abortion, sought

to impose a one-size-fits-all approach with regard to the

value of the life of the unborn on the entire nation. In doing

so it is attempting to undermine the federal structure that

is central to American constitutional government. Because

HHS’s conditioning of Title X funding in this case violates

the several basic principles of American constitutional

government, it is not necessary and proper.

The HHS condition similarly would undermine

conscience protections that are necessary to ensure that

State employees’ First Amendment rights are protected.

Many healthcare workers have religious objections to

being forced to support abortions. Oklahoma’s policy would

protect its employees with such objections. HHS, on the

other hand, seeks to force those employees to participate

in facilitating abortion in a way that threatens their First

Amendment speech and Free Exercise rights.

Because HHS’s abortion referral condition would

impose on Oklahoma and its employees conditions that the

Federal Government could not directly impose under any

of its enumerated powers, and because the condition is not

a necessary or proper exercise of any of those powers, it

is beyond the power of Congress—and thus of HHS—to

enact. For all of these reasons, this Court should grant

the petition for certiorari and rule for Petitioner.

11

CONCLUSION

For the forgoing reasons, the Court should grant

certiorari and rule for Petitioner.

Respectfully submitted,

J. Marc Wheat

Counsel of Record

Timothy Harper

A dvancing A merican Freedom, Inc.

801 Pennsylvania Avenue, N.W.,

Suite 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancing

americanfreedom.com