Amicus Curiae Brief — Metropolitan Life Insurance v. Massachusetts

Office - Supreme Court. US. |

FILED

ALEXANDER L. STEVAS

CLERK

Supreme Court of the Uni

October Term, 1984

METROPOLITAN LIFE INSURANCE COMPANY,

Appellant

V.

COMMONWEALTH OF MASSACHUSETTS

Appellee

ON APPEAL FROM THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS

BRIEF AMICUS CURIAE OF THE AMERICAN

CHIROPRACTIC ASSOCIATION IN

SUPPORT OF THE APPELLEE

Harry N. Rosenfield

(Counsel of Record)

1735 DeSales St., N.W.

Washington, D.C. 20036

(202) 393-0250

Thomas R. Daly

1916 Wilson Blvd.

Arlington, VA 22201

(703) 276-8800

Attorneys for the

American Chiropractic

Association

December 28, 1984

eS

ETS, TSS LE A SI A

DiCesare and Associates Printing @ Washington, D.C. @ (202) 331-8101

QUESTION PRESENTED

Whether, as a threshold question, the Employee

Retirement Income Security Act of 1974, 29 U.S.C.

1101 et seq. (ERISA) unconstitutionally preempts a

Massachusetts statute which mandates inclusion of

minimum mental health care benefits in all health and

accident insurance policies covering the State's

residents.

The narrow constitutional issue here is whether the

Ninth and Tenth Amendments are limitations on

Congress’ powers under the Commerce Clause with

respect to a preemption clause in a Federal statute

which in other respects may be within Congress's

constitutional power to regulate interstate commerce

in insurance.

Because “the Constitutionality of an Act of

Congress is drawn in question ...”, 24 U.S.C. §2403(a)

may be applicable. —

ee eee

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........cccccccccess (i)

pe ee 3 (ii)

it le AF >. |. 2

SUMMARY OF ARGUMENT .................... 3

ARGUMENT

THRESHOLD ISSUE: TENTH AMENDMENTS’

PRESERVATION OF CONSTITUTIONAL

EES STEPS OSE TTT TTEETTET ETE 4

ERISA’S PREEMPTION PROVISION IN UN-

CONSTITUTIONAL UNDER TENTH

AMENDMENT ...... DIMER ERGSERWEEK AOC 05000 6

TENTH AMENDMENT IS AN INDEPENDENT

LIMITATION ON CONGRESS’ POWERS .... 8

FEDERAL POWER IN A TRUE

TT Secededendbescescccccccccsces 13

SYNERGISTIC EFFECT OF NINTH

Crete cca cisebeeseoccocccccces 17

CONCURRENT AND SHARED FEDERAL AND

i Vegeesbtecnccecoencececcees 18

reed CaN e Sess eco scccccsccccecs 23

-

lil

TABLE OF AUTHORITIES

Page

CONSTITUTION

Re ccc ccccdcacccccocucce 7

Ss CE PUEDE Oe OOD vce cc ciccccccccecscestie 7

a eee 7

WS Is Es OD ccc ec vcccccccccccccssns 7

U.S. CONST. ART. I, Sec. 8, cl. 3

(Commerce Clause) ...... 3, 7, 10, 11, 16, 17, 18

U.S. CONST. ART. |, Sec. 8, cl. 4 .......... 10, 18

U.S. CONST. ART. |, Sec. 8, cl. 8 ........... 7, 20

U.S. CONST. ART. VI (Supremacy Clause) ... 4,8

U.S. CONST. Amend. V .................. 9, 11, 12

U.S. CONST. Amend.

i .aseeeepacns 3, 4, 8, 11, 12, 13, 17, 18, 21, 22, 23

U.S. CONST. Amend. X ... 3, 4, 5, 6, 7, 8, 9, 10, 11,

13, 15, 16, 17, 18, 21, 22, 23

STATUTES AND LEGISLATIVE MATERIALS

ERISA 29 U.S.C. 1101 at seq. ............. Passim

P.L. 98-21 Sections 601-607 (1983) .............. 6

I! Annals of Congress, 1857 (1791) .............. 6

1983 C.Q. Almanac, 391 at 393 .................. 6

CASES

A.F. of L. v. Swing, 312 U.S. 321 (1941) ......... 13

Alessi v. Raybestos-Manhattan, Inc., 451

SEE A bubéiscecsocceevcevdeceecsccess 4

Allied Structural Steel Co. v. Spannous, 438

Ne en he re 15

iv

Ashton v. Cameron County Water District, No.

Se Oe, EE, CE nadcscnseccecseetes 9

Atchinson Ry Co. v. United States, 284

“8 fF, peer rrrr errr Te TT Tre 15

Bridges v. California, 314 U.S. 252 (1941) ....... 13

Brown v. Brannon, 299 F. Supp. 133 (1975), aff'd

without opinion 535 F.2d 1249 (4th Cir. 1983) . 10

Bucyrus - Erie Co. v. Department, 599 F.2d 205

tot: S SP rrrrrrryrrT T° LITT ee 19

California v. LaRue, 409 U.S. 109 (1972) ........ 11

Carpenter v. Pennsylvania, 508 F. Supp.

CD Sveccecdntcscsdenveseacsacecsccoces 10

Cincinnati Soap Co. v. United States, 301

ED 6 vc dcceusdesdedwhesevenenacegss fs)

Cooley v. Board of Wardens, 53 U.S. (12 How.)

PEED: GncGdecdvedicerdevecccisseveveeees 19

EEOC v. Ferris State College, 493 F. Supp.

ED: Cee Bh de eeheceedceeteesoccecessees 10

Federal Energy Regulatory Commission v. Mis-

sissippi, 456 U.S. 743 (1982) .............. 6, 14

Florida Lime and Avocodo Growers, Inc. v. Paul,

ED ccc occteceeseucesasecosces 13

Franchise Tax Board v. Construction Laborers’

Vacation Trust, 102 S.Ct. 2841 (1983) ......... 15

Gold Cross Ambulance v. City of Kansas City,

538 F. Supp. 956 (1982), aff'd. 705 F.2d 1005

SPE: THEE See edecccesdcsccesecéencvecees 10

Goldstein v. California, 412 U.S. 546 (1973) .. 7, 20

Gordon v. United States, 117 U.S. 697 (1864) .... 8

v

Graham v. John Deere Co., 393 U.S. 1 (1966) .... 7

Griswold v. Connecticut, 381 U.S. 479,

thusndedkadeds Pia N aie ckse «6 oe 12, 18, 20

Helvering v. Davis, 301 U.S. 619 (1937) .......... 9

Hewlett Packard Co. v. Barnes, 425 F. Supp. 1294

(1977), aff'd. 571 F.2d 50 (9th Cir. 1978)

cert. den. 439 U.S. 831 (1978) ................ 10

Home B&L. Assn. v. Blaisdell, 290 U.S. 398

eh eee ee Oe ee i eee ae 15

Hopkins Federal S&L Assn. v. Cleary, 296 U.S.

eee ih oe a eee hana dae 5,9

Brief of Solicitor General Jackson ............. 9

Hostetter v. idlewild Bon Voyage Liquor Corp.,

REE a ae 11

I.N.S. v. Chadha, 103 S. Ct. 2764 (1983) ........ 11

Kansas v. Colorado, 206 U.S. 46 (1907) ... 8, 15, 17

Louisville Joint Stock Land Bank v. Radford,

Se Gs GNP COED 0 vn cccccecccccucees 11, 12, 13

Marbury v. Madison, 1 Cranch 137 (1803) ........ 8

Marshall v. Del. River and Bay Authority, 471

= eee eee ee 10

McCulloch v. Maryland, 17 U.S. 316 (4 Wheat.

ae 7

Miller v. California, 413 U.S. 15 (1973) .......... 20

Miss. Univ. for Women v. Hogan, 458 U.S.

Dh siresinebvaddhe tank 6Keedeeeuce ce os 8

National League of Cities v. Usery, 426 U.S.

Dt Julinsablidevenenees Vankedetnes 13, 15

Oklahoma v. Woodring, 309 U.S. 623, mem.

CURE 60s 0 cud n in cue Sacks cadieecee cs 5, 16

Comments of Solicitor Genera! .............. 16

Olmsted v. United States, 277 U.S. 438 (1928) ... 13

Peel v. Florida Dept. of Transportation, 600

- boul oe S&S. . Bee 11, 13

Prout v. Starr, 188 U.S. 537 (1903) .............. 10

Shaw v. Delta Airlines, Inc., 103 S.Ct. 2890

SUE cunee 444400000440 00bennnesthawe 4, 15, 16

Standard Oil Co. of California v. Agsalud, 442

F. Supp. 695 aff'd 633 F.2d 760 \%th Cir. 1980),

aff'd. without opinion, 454 U.S. &. (1981) .... 10

Steward Machine Co. v. Davis, 301 U.S. 548

CD obs eacsutanetdecatnceGedeeudlenedes 9,14

The Collector v. Day, 78 U.S. 113 (11 Wall.) 124

DG cdk stauesnnannetandanatedbiandeentauaes 6

United States v. Bally Mfg. Corp., 345 F. Supp.

SEE 03n00 0840400 db scandnsuenwansnresss 10

United States v. Bekins, 304 U.S. 27 (1938) ...... 8

Brief of Solicitor General Jackson ............. 8

United States v. Butler, 297 U.S. 1 (1930) ..... 6,9

United States v. California State Water

Resources, 694 F.2d 1171 (9th Cir. 1982) ...... 4

United States v. Darby, 312 U.S. 100, 123-4

‘L )) BPP eer Tr rrerrereeererrrirrrii itil 8

Wadsworth v. Whaland, 562 F.2d 70 (1977), cert.

i GER GD dnbdccvcecés dedensdeues avece 4

Wheaton v. Peters, 33 U.S. (8 Sieur 591

EERE rier tg Sas ee 20

Wils« ~ v. New, 243 U.S. 332 (1917) rr 4

Wright v. Council of the City of Emporia, 407

I a 8

Younger v. Harris, 401 U.S. 37 (1971) ........... 14

MISCELLANEOUS

Cohen, “Faith of a Liberal” (1946) 180 .......... 21

Comment, “The Ninth Amendment,” 30 ALBANY

S&S en 12

Corwin, The Constitution (1953) ............... 18

Dowling and Gunther, Constitutional Law, 10

EE dt ce Doe ues tub ae beddetenees 10

Former Solicitor General Robert H. Jackson,

ESS SE ne 9, 16

Former Soliciter General Wade H. McCree, Jr.,

“Civil Liberties and Limited Government.”

64 National Forum 39 (Fall 1984) .............. 5

Hutchinson and Ifshin, “Federal Premption of

State Law Under Erisa.” 46 U. CHI. L. REV.

PPE uk eurosuueedeeddibadwekeascecac 16

Kelsey, “The Ninth Amendment of the Federal

Constitution,” 11 IND. L. J. 309, 311 (1936) ... 17

Lockhart, Kamisar and Choper, Constitutional

Law, Cases-Comments-Questions, 4th ed.

I es aa ad el le han EE i ta 16

Madison, James, II Annals of Congress (1957) ... 6

NIMMER ON COPYRIGHT, Sec. 1.01 (B), 202 .. 20

Vili

Oklahoma v. Woodring, 309 U.S. 623 (1940),

Transcript of Proceedings, Jan. 29, 1940,

. Ss Seer rr 5, 16

Redlich, “Are There Certain Rights. ..Retained \

by the People?” 37 N.Y.U.L. REV. 787,

904-5 (10B2Z) wc ccvscccccccccccccccvcces 11, 17

29 THE WRITINGS OF GEORGE WASHINGTON,

478 (Fitzpatrick ed. 1939) ......... cee eee eee 7

No. 84-325

IN THE

Supreme Court of the United States

October Term, 1984

METROPOLITAN LIFE INSURANCE COMPANY,

Appellant,

V.

COMMONWEALTH OF MASSACHUSETTS,

Appellee

On Appeal from the Supreme Judicial Court

for the Commonwealth of Massachusetts

BRIEF AMICUS CURIAE OF THE

American Chiropractic Association

This case presents a fundamental question involving

the constitutional structure of the American Republic:

-whether Constitutional Federalism, through shared

and concurrent Federal and State power, is protected

as a means of coping with an urgent social and

economic crisis for State and local governments and

their residents, or

-whether, in the absence of any showing of

supervening national necessity or emergency, a

centralist government which forbids States to

experiment with various solutions to this crisis can

supercede Constitutional Federalism.

INTEREST OF AMICUS

The American Chiropractic Association is the

largest professional chiropractic association in the

United States, with members in all 50 states who are

licensed as chiropractors by their respective States.

Chiropractic is a licensed health profession in all 50

States.

Chiropractors are defined by Congress as

“physicians” authorized to provide health care in

Medicare, Medicaid, the Federal Employees

Compensation Act, the Federal Longshoremen’s and

Harborworkers’ compensation program, and the

cooperative Federal/State Vocational Rehabilitation

program. The U.S. Department of Education has

officially recognized a chiropractic agency to accredit

chiropractic colleges.

Chiropractic health care is also a benefit in many

private commercial health insurance programs and

labor-management health programs. At least 35 States

have enacted statutes which require inclusion of

chiropractic health care in all commercial health

insurance applicable to their local citizens and

residents. See Brief Amicus of Health Insurance

Association of America, Appendices IIB and Ill.

If ERISA may constitutionally preempt this State’s

mandatory mental health benefits, presumably the

same rule would apply to the 35 States which mandate

chiropractic health care, a result which would be a

eerious detriment to the multiple thousands of

Amicus’ members and to their millions of patients.

Amicus has a major interest in the outcome of this

case, as do the patients of its members whose health

would be jeopardized by such Federal preemption.

SUMMARY OF ARGUMENT

This Court is faced with a critical and unresolved

threshold problem of Constitutional Federalism. This

Court has never decided the threshold question

whether ERISA’s preemption provision is an

unconstitutional abridgement of the rights reserved to

the States under the Tenth Amendment and of the

rights retained by the American people under the

Ninth and Tenth Amendments. All prior cases in this

Court and in the lower courts dealing with ERISA’s

preemption were decided solely on grounds of

Statutory construction. The threshold constitutional

question has not been raised by the parties and was

not briefed and argued to the Court in those prior

cases. This threshold issue must be seitled first.

The Tenth Amendment is an independent

constitutional restriction on Congress’ power under

the Commerce Clause. It is the fundamental

protection of the Bill of Rights for Constitutional

Federalism which guards the American people against

a would-be all-powerful centralized government.

Amicus does not question Congress’ power to

regulate insurance under the Commerce Clause, but

respectfully submits that with respect to the very

narrow issue of preemption, Congress’ powers under

the Commerce Clause are limited by the Ninth and

Tenth Amendments. On the record before the Court,

the preemption provision is an unconstitutional and

impermissible abridgement of Constitutional

Federalism.

Since there is a total absence of any record showing

of a national emergency of crisis, in carrying out its

obligation of balancing independent and conflicting

constitutional provisions the Court should affirm the

decision below not on the ground of statutory

interpretation but on the basis that, with the recorc

before it, ERISA’s preemption is unconstitutional

under the NINTH and TENTH Amendments.

ARGUMENT

THRESHOLD ISSUE: TENTH AMENDMENT’S

PRESERVATION OF CONSTITUTIONAL FEDERAL-

ISM HAS BEEN COMPLETELY IGNORED BY BRIEFS

AND COURT BELOW

The parties and the court below erroneously treated

this case solely as one of statutory interpretation,

thereby ignoring the fundamental threshold issue

whether the Ninth and Tenth Amendments bar

ERISA’s preemption provision. That threshold

question must be settled “before going further.’"

This Court has not heretofore been squarely

presented with the question of constitutionality of

ERISA’s preemption clause under the Tenth

Amendment. In Alessi v. Raybestos-Manhattan, Inc.,

451 U.S. 504 (1981) and Shaw v. Delta Air Lines, Inc.,

103 S. Ct. 2890 (1983), as well as in Wadsworth v.

Whaland, 562 F.2d 70 (1977), cert. den. 435 U.S. 980,

there was absolutely no discussion of the Tenth

Amendment in the Briefs, or by the Court. The

decisions went off on statutory interpretation, except

for an occasional! passing reference to the Supremacy

Clause.

‘Wilson v. New, 243 U.S. 332, 334 (1917). See United States v.

California State Water Resources, 694 F.2d 1171, 1175 (9th Cir.

1982).

In Hopkins Federal S. & L. Ass'n. v. Cleary, 296 U.S.

315 (1935), Cardozo said for the Court:

“..mowhere here in the record did the

defendant invoke the Tenth Amendment. We

cannot accept it as determining the

constitutional rights ... least of all when it

appears that constitutional rights and

privileges were not involved or argued” (at

432-3)?

Therefore, the rulings in such prior cases are not

dispositive of the threshold question of constitution-

ality under a constitutional system of governence by

limited authority, “...no more power than was

absolutely necessary for an efficient central

government.”?

A major social and economic crisis now facing the

American people is the capacity of local and state

governments to assure their people, in their local

communities, of adequate comprehensive health care

at a reasonable and affordable cost. The extraordinary

genius of the Constitution and the Bill of Rights is

adaptability to the problems of successive generations

of Americans. The appellee, in common with virtually

all of the States, is experimenting with solutions to this

peoples’ crisis in health care arrangements. Federal

preemption would foreclose such flexibility in the

Federal system.

2in oral argument before the Court in Oklahoma v. Woodring,

309 U.S. 623 mem. (1940), neither the parties nor the Court even

mentioned the Tenth Amendment. Transcript of Proceedings,

Jan. 29, 1940, vol. 1 and 2.

3Former Solicitor General Wade H. McCree, Jr., Civil Liberties

and Limited Government, 64 NATIONAL FORUM 39 (Fall 1984).

Throughout our national history, Constitutional

Federalism has been the energizing engine for State

experimentation, sanctioned by concurrent exercise

of Federal and State power. Justice Connor well

described this historical role of the States as

laboratories for developing new social, economic and

political ideas.* This same pattern was followed by the

Congress in the 98th Congress, by providing for cost-

containment of hospitalization, through adopting a

mechanism developed in New Jersey.5

By limiting consideration solely to statutory

construction, the parties as well as the Court below

have missed the threshold issue of the Tenth

Amendment's role in preserving Constitutional

Federalism. The instant case is classic on this

constitutional issue. This Court must face the issue at

the outset.

ERISA’S PREEMPTION PROVISION IS UN-

CONSTITUTIONAL UNDER TENTH AMENDMENT

Under the Tenth Amendment, the Federal

Government may not constitutionally preempt the

Massachusetts statute here involved.

This Court has held that under the Tenth

Amendment "powers not granted are prohibited.”

United States v. Butler, 297 U.S. 1,68 (1936). See also

The Collector v. Day, 78 U.S. 113 (11 Wall.) 124 (1870).

Madison, the sponsor of the Tenth Amendment in

1791, said: “If the power was not granted, Congress

may not exercise it.”"* George Washington wrote to

‘Dissenting. Federal Energy Regulatory Commission v.

Mississippi, 456 U.S. 743, 788-9 (1982) and her copious citation of

cases and authority.

5P.L. 98-21, Sec. 601-607 (1983); 1983 C.Q. Almanac, 391 at 393.

61} Annals of Congress, 1857 (1791).

Lafayette that “...the people evidently retained

everything which they did not in express terms give

up.””

The grant of power to Congress by the Constitution

was also a limitation of power.®

This doctrine has been recognized from the earliest

days. In McCulloch v. Maryland, 17 U.S. 316 (4 Wheat.

579) (1819), Chief Justice Marshall stated the

following prophetic words:

“This government is ... one of enumerated

powers. But the question respecting the

extent of the powers actually granted is

perpetually arising, and will probably

continue to arise, as long as our system shall

exist.” (at 405).

Amicus raises the question of the Tenth

Amendment's limitation on the Commerce Clause.

The Commerce Clause does not specifically vest

exclusive power in the Federal Government. Chief

Justice Burger ruled that the same was true of the

Copyright Clause. The Founders knew how to

provide exclusive jurisdiction when they intended to

do so."°

729 THE WRITINGS OF GEO. WASHINGTON 478 (Fitzpatrick

ed. 1939).

*See Graham v. John Deere Co., 383 U.S. 1, 5-6 (1966). (“The

[patent] clause is both a grant of power and a limitation.”)

*Goldstein v. California, 412 U.S. 546, 553 (1973).

"The House has “sole power of impeachment,” ART. |, Sec. 2,

but the Senate has “sole power to try all impeachment,” ART |,

Sec. 3, “All Bills raising Revenue shall originate in the House of

Representatives,” ART. |, Sec. 7. Congress shal! have exclusive

jursidiction over the District of Columbia, Art. |, Sec. 8.

It is established doctrine enunciated by Chief

Justice Taney, that legislation beyond the authority of

the Congress under the Ninth and Tenth Amendments

does not come within the protection of the Supremacy

Clause."

Amicus raises no question as to Congress’

constitutional power to regulate insurance. But

because of the Tenth Amendment such right does not

include Federal preemption of State statutes

mandating specific health services in health and

accident policies covering their residents. “The

existence of a permissible purpose cannot sustain an

action that has an impermissible effect.’'? The

permissible purpose here is regulation of insurance,

the impermissible effect is Federal preemption in the

circumstances of this record.

ERISA’s preemption provision conflicts with the

Tenth Amendment and cannot negate the operation of

the Massachusetts statute."®

TENTH AMENDMENT IS AN INDEPENDENT

LIMITATION ON CONGRESS’ POWERS

In Kansas v. Colorado, 206 U.S. 46, 90-1 (1907) the

Court said:

“This Article X is not to be shorn of its meaning

by any narrow or technical construction, but

is to be considered fairly and liberally so asto.

give effect to its scope and meaning ...”,

"Gordon v. United States, 117 U.S. 697, 705 (1864).

"Wright v. Council of the City of Emporia, 407 U.S. 451, 462

(1972).

"See Marbury v. Madison, 1 Cranch 137 (1803): Mississippi

University for Women v. Hogan, 458 U.S. 718 (1982).

which the Court stated to be a limitation on an “attempt

to exercise power which had not been granted.” The

Court stated that the Tenth Amendment was an

“express limitation on the powers of Congress.”

Hopkins Federal S. and L. Assn. v. Cleary, supra at

335-6, held an Act of Congress “unconstitutional

encroachment upon the reserved powers of the States.

United States Constitution Art. X”:

“The power of the Congress in the

premises. ..being not exclusive, but at most

concurrent...we are constrained to the

holding that there has been an illegitimate

encroachment by the government of the

Nation upon a domain of activity set apart

by the Constitution as the province of the

states... (at 338)"

It is especially significant in this connection thatina

brief for the United States (at pp. 59-60), Solicitor

General Robert H. Jackson (later, Justice of this

Court) in United States v. Bekins, 304 U.S. 27 (1938),

aavised this Court that its opinion in Hopkins

“appears to view this conclusion as based

upon the Tenth Amendment, independently

of the scope of powers granted to the United

States (pp. 335, 336).

This same conclusion, Jackson said, was buttressed

by five other decisions of this Court."5

'4U.S. v. Darby, 312 U.S. 100, 122-4 (1941) is dicta and is not

dispositive since the Court's opinion specifically states that it was

deciding the case only on the basis of the Fifth Amendment and

purely as a matter of statutory construction (112).

U.S. v. Butier, 297 U.S. 1, 68 (1936); Ashton v. Cameron

County Water District, No. One, 298 U.S. 513, 527, 331 (1936);

Steward Machine Co. v. Davis 301 U.S. 548 (1937); Helvering v.

Davis, 301 U.S. 619 (1937); Cincinnati Soap Co. v. United States,

301 U.S. 308 (1937).

10

Another long line of cases is to the same effect, that

the Tenth Amendment is an independent, affirmative

limitation on the Congress, including actions based on

the Commerce Clause."*

Still another line of cases also leads to the same

conclusion. The Constitution is “...one instrument, all

of whose provisions are to be deemed of equal

validity.”"’ Therefore, the Tenth Amendment must be

applied “with equal validity” to the Commerce

Clause."®

Even the most precise Constitutional authorizations

to Congress, such as the bankruptcy power, are

subject to the Bill of Rights. This Court ruled that “the

bankruptcy power, like the other great substantive

*Standard Oil Co. of California v. Agsalud, 442 F. Supp. 695, 710

(“The Tenth Amendment imposes substantial limitations on

Congress’ power under the Commerce Clause”), aff'd. 633 F. 2d

760 (9th Cir. 1980), aff'd. without opinion, 454 U.S. 801 (1981);

Gold Cross Ambulance v. City of Kansas City, 538 F. Supp. 956

(W.D. Mo., W.D., 1982), aff'd. 705 F.2d 1005 (8th Cir. 1983); Brown

v. Brannon, 399 F. Supp. 133, 147 et. seq (M.D. No. Car., Durham

Div., 1975), aff'd without opinion 535 F.2d 1249 (4th Cir. 1976);

EEOC v. Ferris State College, 493 F. Supp. 707, 712 (W.D. Mich.

SD, 1980); Marshall v. Del. River and Bay Authority, 471 F. Supp.

886, 891 (D.De. 1979); Carpenter v. Pennsylvania, 508 F. Supp.

148, 149 (E.D. Penna. 1981). But see Hewlett-Packard Co. v.

Barnes, 425 F. Supp. 1294 (N.D. Calif, 1977), aff'd 571 F.2d 502

(9th Cir., 1978), cert. den. 439 U.S. 831 (1978); United States v.

Bally Mfg. Corp., 345 F. Supp. 410, 423 (ED. La. 1972).

"Prout v. Starr, 188 U.S. 537, 543 (1903).

*The Constitution was ratified in 1788, and the first ten

amendments were ratified in 1791. Dowling and Gunther,

Consititutional Law 10 (1965).

11

powers of the Congress, is subject to the Fifth

Amendment.’’'®

As to the Ninth and Tenth Amendments, “a careful

reading of the words and history ... indicates that they

were intended to play a role in our constitutional

scheme.’’° They can have meaning only if

implemented to restrict the Federal Government.

Administrative convenience or legislative tidiness

cannot iustify unconstitutional Federal action as this

Court indicated in the legislative veto case, for

example.*'

The balancing of various constitutional provisisons

is acommon judicial experience,” as true of the Ternih

Louisville Joint State Land Bank v. Radford, 295 U.S. 555, 589

(1935). The quoted portion in the text is followed by the following

footnote in the Court's opinion:

“For instance, the war power, Ex parte Milligan, 4

Wall. 2, 119: Ochoa v. Hernandez, 230 U.S. 139, 153-4;

Hamilton v. Kentucky Distilleries Co., 251 U.S. 146,

155. The power to tax, United States v. Railroad Co., 17

Wall. 322; Boyd v. United States, 116 U.S. 616; Nichols

v. Coolidge, 274 U.S. 531, 542; Blodgett v. Holden, 275

U.S. 142, 147; Barclay & Co. v. Edwards, 267 U.S. 442,

450, Heiner v. Donnan, 285 U.S. 312, 326. The power to

regulate commerce, Monongahela Navigation Co. v.

United States, 148 U.S. 312, 336; United States v. Joint

Traffic Assn., 171 U.S. 505, 571; Carroll v. Greenwich

Insurance Co., 199 U.S. 401, 410; United States v.

Lynah, 188 U.S. 445, 471; United States v. Cress, 243

U.S. 316, 326. The power to exclude aliens, Wong

Wing v. United States, 163 U.S. 228, 236, 237-8.

Compare Perry v. United States, 294 U.S. 330.”

2Redlich, Are there “Certain Rights...Retained by the

People”?, 37 N.Y.U.L. Rev. 787, 804-5 (1982).

211.N.S. v. Chadha, 103 S.Ct. 2764, 2780-1 (1983)

22Peel v. Florida Dept. of Transportation, 600 F.2d 1070, 1084

(Sth Cir. 1979) (Tenth Amendment and War Powers). See, e.g.,

Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324

(1964); California v. LaRue, 409 U.S. 109, 115 (1972).

12

Amendment as of any other constitutional provisions.

The judicial task of reconciling and accomodating

seemingly conflicting constitutional provisions is well

described as follows:

“A person has the right not to have

government act where it lacks power. In

addition, he has other rights, which deny

government power to act where otherwise it

might. For example, the government has the

power to regulate bankruptcy proccedings

[U.S. Constitution, Art. 1, Section 8], but it

lacks power to regulate them in such a way

that a property owner is deprived of property

without due process of law [Louisville Bank v.

Radford, 295 U.S. 555 (1935)]. Though

government has the power to preserve its own

existence [Dennis v. U.S., 341 U.S. 494, 501

(1951)], that power is tempered by the rights

guaranteed by the first and fifth amendments

[Aptheker v. Secretary of State, 378 U.S. 500

(1964)]. Similarly, where a person has an

inherent right, recognized by the ninth

amendment, it protects him against some

exercise of power which might otherwise be

proper ... It is in areas where government has

power to act that it is important to the

individual to have positive rights.”

These “positive rights” come within what Justice

Douglas, for the Court in Griswo/d, called

“penumbras, formed by emanations from those [Bill of

Rights] guaranties that help give them life and

substance.”*4

23Comment, “The Ninth Amendment,” 30 ALBANY L. REV. 89,

99 (1966).

24Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (specifically

referring to the Ninth Amendment as an example).

13

The Bill of Rights (including the Ninth and Tenth

Amendments) has a special place and role in American

constitutional interpretation, sedulously protected by

this Court,*5 and guarded “with a jealous eye.”** A

liberal interpretation of such rights has been called

“the only conclusion supported by history.”?’

In the instant case, the penumbra of the Tenth

Amendment constitutionally authorize Mass-

achusetts to determine what health benefits shall be

provided to its residents under commercial health

insurance policies, without hindrance by Federal

preemption.

Federal Power in a True Emergency

Since constitutional interpretation involves

balancing constitutional provisions,”* the independent

status of the Tenth Amendment as a restriction on

Congress’ powers need not prevent the Federal

Government from acting where a true emergency

requires national action. Justice Black analyzed the

symbiotic relationshio between the States and the

central government as follows:

See, for example, Louisville Joint Stock Land Bank v. Radford,

supra n. 19. Cf: Florida Lime and Avocado Growers, Inc. v. Paul,

373 U.S. 132, 151 (1963).

26A F. of L. v. Swing, 312 U.S. 321, 325 (1941).

27Bridges v. California, 314 U.S. 252, 263, 265 (1941). See also

Olmsted v. United States, 277 U.S. 438, at 471, 476 (1928).

28See Justice Blackmun’s comment, concurring in National

League of Cities v. Usery, 426 U.S. 833, 856 (1976); Peel v. Fia,

Dept., supra n. 22 at 1084 and note 10.

14

“The concept [of Federalism] does not mean

blind deference to ‘State Rights’ any more

than it means centralization of control over

every important issue in our National

Government and its courts. The Framers

rejected both these courses. What the

concept does represent is a system in which

there is sensitivity to the legitimate interests

of both State and National Governments, and

in which the National Government, anxious

though it may be to vindicate and protect

federal rights and federal interests, always

endeavors to do so in ways that will not

unduly interfere with the legitimate interests

of the States.”?®

Black's interpretation was cited with approval by

Justice Connor, Chief Justice Burger and Justice

Rehnquist.*°

In Steward Machine Co. v. Davis, supra n. 15, dealing

with the Federal Unemployment Compensation Act of

1935, the United States argued that the Nation was

faced with a “problem which threatened the peace and

solvency of local government, of the state

governments, and of the national government.” (p.

567). In balancing the constitutional provisions

involved, the Court referred to a “crisis so extreme”

(586) that it sent unemployment to “unprecedented

2°Younger v. Harris, 401 U.S. 37, 44 (1971).

*FERC v. Mississippi, 456 U.S. 742, at 796-7 (1983)

(dissenting.)

eects a —

15

heights”, with a problem which “had become national

in area and dimensions” thus presenting an “urgent

need for some remedial expedient” (586-7).

ln contrast, however, in the record before the Court

here, there is no showing whatsoever of any national

emergency which threatens the Nation, the States or

the national government. There is no constitutional

basis, therefore, for balancing against the Tenth

Amendment's full scope.

Does such a balancing in favor of the Tenth

Amendment leave untidy constitutional or govern-

mental edges in the exercise of power? Justice

Cardozo dealt with such a problem:

“In ruling as we do, we must leave many

questions open ... Enough for the present

purposes that wherever the line may be, this

statute is within it. Definitions more precise

must abide the wisdom of the future.”*

This Court described ER!ISA’s clause as a “virtually

unique preemption provision.”* In this light, it is well

31See also Atchison Ry Co. v. United States, 284 U.S. 248 (1932);

Home B. & L. Ass'n v. Blaisdell, 290 U.S. 398, 426, 444 (1934);

National League of Cities v. Usery, supra n. 28, at 853; Allied

Structural Steel Co. v. Spannous, 438 U.S. 234, 249 (1978).

32Steward Machine Co. v. Davis, supra n. 15, at 590. See also

Kansas v. Colorado, 206 U.S. 47, 93 (1907).

33Franchise Tax Board v. Construction Laborers’ Vacation

Trust, 102 S. Ct. 2841, n. 26 (1983), cited with approval by Justice

Connor (the Chief Justice and Rehnquist, J. concurring) in Shaw

v. Delta Air Lines, 103 S. Ct., 2890, 3900 at fn 15 (1983),

dissenting.

16

to heed the scholarly warning against “the futility of

seeking to transfer generalizations from one area of

regulation to another.”*' Another scholarly comment

is also relevant: “a restriction on preemption in one

particular field [of ERISA] may not by itself undermine

the effectiveness of ERISA.”*5

Absent the most compelling reasons, which are

wholly lacking in the record here, the Tenth

Amendment is a limitation on the Commerce Clause

and ERISA’s preemption clause. “Enough for the

present,” as Cardozo advised.

This Court has recognized the nonfungibility of

constitutional rulings because of factual differences in

the cases. For example, the colloquy on oral argument

by Solicitor General (later, Justice) Jackson in State of

Oklahoma v. Woodring:

“Mr. Jackson, Your Honors upheld the Social

Security Act.

The Chief Justice. | know. That is a special

story on its own facts...”

In a true emergency, Federal power can be effectively

exercised as “a special story on its own facts” in the

balancing of various constitutional provisions.

“Hutchinson and Ifshin, Federal Preemption of State Law

Under ERISA, 46 U. CHI. L. REV. 23, 80 (1978). This article was

cited with approval in Shaw v. Delta Air Lines, 103 S. Ct. at 2901

note 19.

Lockhart, Kamisar and Choper, Constitutional Law, Cases-

Comments-Questions (1975, 4th ed.), 404.

6309 U.S. 623 (1940), Transcript of Proceedings, Jan. 29, 1940,

Vol. 1, p. 81.

17

SYNERGISTIC EFFECT OF NINTH AMENDMENT

The constitutional impact of the Tenth Amendment,

with its reservation of undelegated powers to the

States “or to the People”, is augmented and

complemented in the instant case by the Ninth

Amendment which provides for the retention of

unenumerated powers “by the people”. In Kansas v.

Colorado, supra, the Court said that the principal

purpose of the Tenth Amendment “was not a

distribution of power between the United States and the

States but a reservation to the people of all powers not

granted.”

The reach of both the Ninth and Tenth Amendments

begins from the limited and non-exclusive grant of

power of Congress in the Commerce Clause. Under

the Ninth Amendment, “rights may arise or appear by

reason of limitations placed upon or by limits of

granted powers.”%”

In exercising its constitutional concurrent and

shared power with the Federal Government, a State

acting in loco parentis in behalf of its residents to

assure them of comprehensive health care coverage in

their health insurance policies, activates both peoples’

reserved power under the Ninth Amendment*® and

their retained power under the Tenth, “for protection

of individual liberty from infringements..."%* from the

Federal Government.

37Kelsey, “The Ninth Amendment of the Federal! Constitution,”

11 IND. L. J. 309, 311 (1936).

%See concurring opinion of Justice Goldberg, the Chief Justice

and Justice Brennan, Griswold v. Connecticut, supra n. 24, at 488,

492-4 (1965).

%*Redlich, supra n. 20, at 808.

18

Amicus respectfully submits that the combined

effect of the Ninth and Tenth Amendments

constitutionally immunizes the statute of Mass-

achusetis, acting in /oco parentis for its “people”, from

preemption by the Federal ERISA statute.

Notwithstanding the Commerce Clause, the rights

sought to be protected by the State here come within

what the Court, specifically mentioning the Ninth

Amendment, called “...penumbras, formed by

emanations from those [Bill of Rights] guaranties that

help give them life and substance.”*°

CONCURRENT AND SHARED FEDERAL AND

STATE POWER

There is no factual justification in the record for any

constitutional claim of need for uniformity in

connection with ERISA’s preemption. The Commerce

Clause contains no express authority for uniformity.

When the Framers intended to authorize or madante

uniformity, they did so in clear and specific terms. For

example, in the Naturalization and Bankruptcies

Clause, ART |, Section 8, Clause 4, the Constitution

authorized Congress

“To establish an uniform Rule of Natural-

ization, and uniform Laws on the subject of

Bankruptcies throughout the United States.”

(emphasis added)*'

A

“Griswold, supra n. 24, at 484.

*‘Corwin, The Constitution (1953), 263. (“In the exercise of its

bankruptcy powers Congress must not transgress the Fifth and

Tenth Amendments.”)

© ee ee 2 te

19

in the clause on duties, imports and excises, the

Constitution mandates that they “shall be uniform

throughout the United States”, ART, | Sec. 3, Cl. 1..

Constitutional authorization for exclusive power

was specific in the language of ART. |, Section 8,

Clause 17, in connection with all cases whatsoever

over the District of Columbia as the seat of the Federal

Government. Likewise, “the sole power of

impeachment” was given to the House of

Representatives, ART. |, Sec. 2, Clause 5, and “the

sole power to try all impeachments” to the Senate,

ART. |, Sec 3, Clause 6.

Not only is there no showing anywhere in the record

of a need that would “require exclusive jurisdiction by

Congress”? but on the contrary Congress itself made it

clear that there was no need for one uniform system

in ERISA, by enacting a whole host of statutory

exemptions and exceptions.*

‘2Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851).

“Preemption does not apply to (1) any state law which

“regulates insurance, banking, or securities,” 29 U.S.C. 1144 (b)

(2) (A); (2) to “any law of the United States,” 1144 (d); (3) to any

employee benefit plan established solely to comply with

applicable workers’ compensation laws, unemployment

compensation laws, or disability insurance laws, 1003(b) (3); (4)

to any plan established primarily to provide death benefits, 1144

(b)(2)(B); (5) to “any generally applicable criminal law of a State,”

1144 (b) (4); (6) to “a governmental plan,” “a church plan,” and

“an excess benefit plan,” 1003(b); (7) to Hawaii's Prepaid Health

Care Act, 1144 (6) (A); and (8) to certain multiple employer

welfare arrangements, 1144 (6) (A) and (B). In addition, ERISA is

inapplicable to state fair employment laws, Bucyrus-Erie Co. v.

Department, 599 F.2d 205 (7th Cir., 1978).

20

Constitutional denial to Congress of exclusive

authority or of a mandate for uniformity under the

Commerce Clause, plus the absence of any showing of

emergency requiring national preemptive power here,

highlights the existence of constitutionally

permissible concurrent State authority in areas where

power is granted to Congress.

Such concurrent exercise of powers oy States and

the Federal Government is neither unique nor unusual.

Despite the Copyright Clause’s grant of power to the

Congress, this Courts’s first significant copyright

decision sanctioned the concurrent exercise by States

of “common law” copyright for unpublished works and

by the Federal Government of statutory copyright for

published works.** The Court has ruled that the

copyright grant to Congress was not by its terms

an “exclusive” grant,*® thereby validating the

constitutionality of concurrent Federal and State

authority in a field where the Constitution specifically

granted power to Congress.*®

The rationale for the exercise of concurrent Federal

and State power under the Constitution was clearly

stated by Chief Justice Burger: “...our nation is simply

too big and too diverse” for the Court to re-

quire a single national “community” standard*’ This

“Wheaton v. Peters, 33 U.S. (8 Peters) 591 (1834).

“SGoldstein v. California, supra, n. 9.

*“See NIMMER ON COPYRIGHT, Sec. 1.01 (B).

*7Miller v. California, 413 U.S. 15, 30 (1973).

rationale applies equally to bar a Federal effort to

establish a single national standard for what health

benefits should or should not be required by all States

in health or accident insurance covering their residents.

The States have a constitutionally protected power to

deal with the health ard the physical and mental well-

being of their residciits without Federal preemption.

The Ninth and Tenth Amendments prescribe a

governmental structure of concurrent and shared

powers between the States and Federal Government.

Power sharing inevitably leads to conflicts. Many such

conflicts (as, for example, those between individual

rights and the national interest or those between State

and Federal rights) are contained within, and

contemplated by, the Constitution. The Framers

consciously left the confiicts to be resolved on a

circumstance-by-circumstance basis responsive to

the political and public policy views of the American

people at any given moment in our history.“

48A distinguished lega! philosopher said:

“The most important issues that come before the

Supreme Court are not questions of well-settled law

but concern issues of public policy about which well-

informed and well-disposed people differ.”

Morris R. Cohen, Faith of a Liberal (1946) 180.

22

As a flexible charter designed for the future of a free

people, the Constitution deliberately preserved such

constructive tensions among concurrent power

sources as a Safety valve to guarantee that the National

Government would be one of limited powers. The

special, unique role of the Bill of Rights is to serve as a

brake against forces, however well-meaning, which

might jeopardize the rights of free people.

To this Court the Constitution delegated the delicate

task of balancing rights in such conflicts between

concurrent and often opposing power sources, in order

to assure that they do not overreach their constitu-

tionally intended and permissible boundaries.

Under this record, the Massachusetts statute under

review has constitutional protection under the Ninth

and Tenth Amendments against ERISA preemption.

ee ee ee a Pe ee ee ee

23

CONCLUSION

The Court should affirm the decision below,

specifically on the basis of the threshold issue that the

Ninth and Tenth Amendments render ERISA's pre-

emption provision unconstitutional.

Respectfully submitted,

HARRY N. ROSENFIELD

(Counsel of Record)

1735 DeSales St., N.W.

Washington, D.C. 20036

(202) 393-0250

THOMAS R. DALY

1916 Wilson Boulevard

Arlington, Virginia 22201

(703) 276-8800

December 28, 1984