Individual Mandate, Medicaid Expansion, & Entire PPACA Unconstitutional, Doctors Tell Supreme Court

Feb 13, 2012

ObamaCare undermines in fundamental and dangerous ways, the practice of medicine, and harms patients & AAPS is taking every opportunity to inform the Supreme Court that physicians oppose this unconstitutional law. In addition to our still pending suit in federal district court, AAPS has filed 8 separate amicus briefs to the Supreme Court and federal circuit appeals courts and sought to intervene in the pending Supreme Court case. 

The Supreme Court is considering 3 issues (severability, Medicaid expansion, and the individual mandate) and AAPS has briefed the court on all three. These 3 briefs are outlined below.

AAPS Brief on Individual Mandate Issue - Filed 2/13/2012
http://www.aapsonline.org/fl-v-hhs-amicus-02-13-2012.pdf

Excerpt from AAPS brief's "summary of argument": The Individual Mandate offends the Constitution in several ways.

First, it fails to invoke the Commerce Clause which requires “commerce” between a party and a counterparty. The Individual Mandate attempts to regulate inactivity of a single party. Specifically, Amici ask the Court to revise its Commerce Clause jurisprudence to first ask the question: Is there “commerce”? Second, by simultaneously trying to enact and amend the Individual Mandate, pursuant to Sections 1501 and 10106 of ACA, respectively, Congress crossnullified those sections in violation of the Presentment Clause. These Sections attempt to simultaneously enact and amend 26 U.S.C. §5000A(a). 124 Stat. 244 and 124 Stat. 910, respectively. While the Petitioners have merely set
forth the relevant portions of 26 U.S.C. §5000A, as amended by Section 10106,7 Amici ask the Court to examine and compare the countervailing texts of Sections 1501 and 101068 to establish the proposition that those sections cross-nullify each other.

Third, Congress did not invoke its revenue-raising power for the several reasons: Because the alleged Penalty (i.e., the alleged “tax liability”) specified in U.S.C. §5000A(b) is conditioned upon a failure to comply with §5000A(a), it can never be triggered if the Individual Mandate is declared unconstitutional for either of the above reasons; (2) Congress also tried to simultaneously enact and amend the Penalty in violation of the Presentment Clause; and (3) the words of Subsection 1501(a)(1) and Subsection 1501(a)(2), as amended by Subsection 10106(a), clearly evince an intent to invoke the Commerce Clause and not the “Taxing Clause.” Finally, without the existence of a “tax liability,” i.e., the Penalty, to assess or collect, the Anti-Injunction Act does not apply to this case.

The Court should affirm that the Individual Mandate is unconstitutional. Furthermore, the Penalty cannot be justified as a tax to assess and collect, because the Penalty will never be triggered.

The AAPS brief on the Individual Mandate issue is available at: http://www.aapsonline.org/fl-v-hhs-amicus-02-13-2012.pdf 

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