There is no judicial line-item veto, argue doctors in brief challenging Affordable Care Act.
In an amicus curiae brief filed today – one of the first to be submitted to the Supreme Court of the United States regarding the upcoming ObamaCare challenge, physicians inform the Justices why the so-called Patient Protection and Affordable Care Act should be overturned in its entirety.
The brief is filed by the Association of American Physicians and Surgeons (AAPS) and several individual physicians.
"For the reasons set forth below, Amici believe that the Eleventh Circuit correctly held that Section 1501, the individual mandate to purchase government-controlled health 'insurance,' is unconstitutional, but incorrectly severed Section 1501 from the remainder of ACA," argues AAPS.
The brief continues, "[a]mici believe that ACA undermines, in fundamental and dangerous ways, the practice of medicine and harms patients."
The Eleventh Circuit erred in allowing for the severability of the Act, states AAPS. "Severance of the individual mandate represents judicial activism at its zenith. It allows the Courts to have a judicial line-item veto and to determine the content of a law after it has been enacted."
There is no reason to believe that judicial line item vetoes are constitutional; presidential line-item vetoes are not. Our country's founders and other historically prominent leaders recognized that neither the courts nor the president should be allowed to deconstruct a statute.
President and former Supreme Court Chief Justice William Taft stated that the President "has no power to veto part of the bill and allow the rest to become a law." George Washington wrote, "from the nature of the Constitution, I must approve all the parts of a Bill, or reject it in toto." Senator Robert Byrd lectured his colleagues that ceding the Senate’s power to control the content of a statute is analogous to actions taken by the Roman Senate which ultimately led to the decline and fall of the Roman Empire.
Furthermore, the idea that the judiciary be joined with the executive in a "council of revision" was considered and expressly rejected by the drafters of the Constitution, argued Constitution scholar Senator Daniel Patrick Moynihan.
Among the individual physicians who joined the AAPS brief as amici are:
Amicus Leah S. McCormack, M.D., privately practices dermatology in New York City, New York. She earned certification from the American Board of Dermatology and is a fellow of the American Academy of Dermatology. She is the immediate Past-President of the Medical Society of the State of New York.
Amicus Guenter L. Spanknebel, M.D., privately practiced gastroenterology. He is a Past-President of the Massachusetts Medical Society and is currently chair of its History Committee. He has served as a Trustee of the Health Foundation of Central Massachusetts and on the faculties of the medical schools at Tufts University and the University of Massachusetts.
Amicus Janis Chester, M.D., privately practices psychiatry in Delaware, serves as chair of the Department of Psychiatry at a community hospital, is a member of the faculty at Jefferson Medical College and holds a variety of positions with organized medicine and psychiatry, locally and nationally.
Amicus Graham Spruiell, M.D., privately practices forensic psychiatry and psychoanalysis in the Boston area.
Other Constitutional arguments made in the AAPS brief:
Congress has the power to regulate interstate commerce, but the matter regulated must first constitute commerce. Congress does not have the power to regulate just anything that might affect interstate commerce, but only commercial activity. Failure to buy a certain type of health insurance is not a commercial activity, or any kind of activity at all.
ACA also violates the presentment clause. Parts of it were presented as amendments to a bill that did not even exist at the time they were presented. During debate over the Constitution’s ratification, James Madison stated laws should be understandable, not too long, and "not be revised before they are promulgated."
Congress ignored Madison’s warning and passed H.R. 3590, a 2400 page bill, which became ACA upon the President’s signature. Within days of passing ACA, Congress also passed
H.R. 4872 which further amended ACA and became the Reconciliation Act.
Given ACA’s length and the number of simultaneously enacted and amended provisions, James Madison surely would have considered ACA too long and too incoherent to be understood. Indeed, ACA’s length and complexity did not go unnoticed by the District Court. “[ACA], as previously noted, is obviously very complicated and expansive. It contains about 450 separate provisions with different time schedules for implementation.”
The Court would have to consider the individual mandate's (Section 1501) relationships with each of ACA’s other 449 provisions – as well as various combinations of ACA’s other provisions – to conduct a thorough severability analysis. A court might have to consider as many as 2 to the 449th power – 1 (an 135 digit number) separate relationships among ACA's remaining provisions.
AAPS (http://www.aapsonline.org) is a national organization of physicians in all specialties, founded in 1943 to protect the sanctity of the patient-physician relationship. It filed an independent case challenging ACA on March 26, 2010. AAPS has filed numerous amicus curiae briefs in noteworthy cases like this one.