# Amicus Curiae Brief — Metropolitan Life Insurance v. Massachusetts

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0138%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 724

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0138%3A17. Public record. Not legal advice.