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���������� Note: The following comes from the Bazelon Center for Mental Health Law which writes, “as you know, the Supreme Court is going to rule on the legal challenges to the Affordable Care Act this Spring or Summer, and briefs are being filed with the Court now.�� The stakes are high, and we could use your help. We need immediate assistance with an outreach effort we’re coordinating for an extremely important amicus brief written by new Board member Sam Bagenstos, in support of the Medicaid expansion component of the new health care law.�� Specifically, as you will see in the attached memo, we are concerned about the potentially far-reaching implications of the Court’s ruling on Medicaid expansion on Medicaid itself, as well as a host of other entitlement programs and federal anti-discrimination laws.��

We do not��envision this to be a brief from the disability community or other “usual players” in the civil rights community.�� We are looking for the support of service providers, child welfare organizations, education associations, religious denominations, and��women’s and girls’ athletics groups.�� We are not seeking����organizations whose name includes��a��state, county, or city�� We are also��hoping to��obtain the support of��prominent political figures

The deadline for getting confirmations is Feb. 13.�� Please be in touch with Ira (irabster@gmail.com), Jennifer (jenniferm@bazelon.org), and Julia Graff (juliag@bazelon.org) as soon as possible if you have any connections that we can leverage in this effort

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Amicus Brief in U.S. Supreme Court Defending the Affordable Care Act’s Medicaid Expansion����

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������ Samuel Bagenstos, University of Michigan Law School*

��������Ira Burnim &Jennifer Mathis, Bazelon Center for Mental Health Law�� ����������

��������Simon Lazarus, National Senior Citizen Law Center

������ Linda Kilb & Sylvia Yee, Disability Rights Educ. and Defense Fund

��������Kathy Boundy & Paul Weckstein, Center for Law & Education

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�������������� We invite you to join a “Friend of the Court” (amicus) brief that will be filed on February 17, 2011, in the U.S. Supreme Court in support of the Affordable Care Act’s (ACA) expansion of Medicaid eligibility.�� The ACA requires states to provide Medicaid services to individuals whose income is 133% of the poverty level or less.�� This expansion accounts for about half (14 million individuals) of those newly insured as result of the ACA.������

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What the Brief Will Say��

�������������� Florida and twenty-five other states are arguing in the U.S. Supreme Court that the ACA’s Medicaid expansion is unconstitutional.�� The amicus brief, drafted by Professor Samuel Bagenstos with input from other experts, will address head-on the states’ constitutional arguments.��

The amicus brief is designed to not only defend the ACA’s Medicaid expansion, but also to try to prevent the Supreme Court from doing damage to other federal spending statues, such as�� the Individuals with Disabilities Education Act (IDEA); Title I of the Elementary and Secondary Education Act, most recently reauthorized in the No Child left Behind Act; the federal foster care and child support enforcement programs (Titles IV-E and IV-D of the Social Security Act); the Religious Land Use and Institutionalized Persons Act; and the Boy Scouts of America Equal Access Act.�� Other “Spending Clause” enactments include Title VI of the Civil Rights Act, Title IX of the Education Amendments of 1972, and Section 504 of the Rehab Act, which prohibit various forms of discrimination (racial, gender, disability) by entities that receive federal funds.��

The brief will focus on refuting the states’ arguments that pose the greatest risk to Medicaid as a whole and to other federal spending statutes.�� Even if the Supreme Court upholds the Medicaid expansion, it is possible the Court may use language or reasoning that could newly place at risk the constitutionality of other Spending Clause enactments and/or invite years of litigation over the constitutionality of other Spending Clause enactments.���� The brief is designed to minimize this danger.����

The brief will argue that: the large amount of money the federal government offers the states cannot make an offer unconstitutionally coercive; the fact that federal tax revenues come from people who live in states does not make federal conditional spending unconstitutionally coercive; Congress’s decision to change the rules governing future participation in an ongoing program is not, for that reason, unconstitutionally coercive; and the fact that Congress may expect that all states will participate in a federal spending program does not make the program unconstitutionally coercive.��

�������������� The National Health Law Program is working on an amicus brief that takes a different tack in addressing the states’ argument.�� It will demonstrate that, contrary to the states’ assertions, there is nothing new or unprecedented about the ACA’s Medicaid provisions.�� As the brief will explain, since the inception of the program, Congress has expanded eligibility and broadened the range of services states must provide.��

�������������� The brief will take no position on, and will say nothing about, the constitutionality of the ACA’s individual mandate.�� The Court’s clerk’s office has said that organizations are allowed to sign on to one brief per issue, so signing onto this brief does not prevent�� your organization from filing�� or signing onto a separate brief addressing the individual mandate (whether for or against), the issue of “severability,” or the application of the “Anti Tax Injunction Act.”

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The Process for Reviewing the Brief and Signing On

������������������ If your organization thinks it may be interested in joining the amicus brief, we will provide you the current draft of the brief for your review.������

�������������� Organizations have until Monday, February 13, to decide whether to sign on.�� After that date, it will be hard logistically to add your organization to the brief.�� If your organization wishes to sign on to the brief, please send us a description of your organization or a link to the webpage where a description can be found.�� We may propose edits to the description for purposes of the brief.����

�������������� Thank you for considering this request.�� If you have questions or concerns, please contact Ira Burnim (202-467-5730 ext. 320, irab@bazelon.org) or Jennifer Mathis (202-467-5730 ext. 313, jenniferm@bazelon.org).��