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


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

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:

AAPS Brief on Medicaid Expansion Provisions Issue – Filed 1/17/2012
A critical method that healthcare “reform” will use to decrease the number of the uninsured (without increasing access to care) is to force States to expand Medicaid eligibility. The U.S. Supreme Court has specifically agreed to consider arguments about the constitutionality of the Medicaid Expansion Provisions (MXPs) in the case against the Affordable Care Act (ACA or “ObamaCare”) brought by Florida and 25 other States..

The government argues that MXPs aren’t really coercive but are simply a condition for continued receipt of Medicaid funding. States could simply withdraw from Medicaid and lose the entirety of their federal funding for indigent medical care—while their citizens continue to pay federal taxes to fund Medicaid in other States.

The Association of American Physicians and Surgeons (AAPS) argues in an amicus brief filed Jan 17 that such a Hobson’s choice is no choice at all. “Regardless of the choice each State makes, that State’s spending will increase.” The State’s taxpayers will be burdened to pay for the increase without an affirmative decision of its legislature and governor, but by federal fiat. Thus, the MXPs are “an assault on the sovereignty of the States and the rights of their citizens.”

Many States are in a precarious fiscal situation, and according to the U.S. Government Accountability Office (GAO), “the primary driver of the fiscal pressure confronting the state and local sector is the continued growth in health-related costs.”

“Our nation cannot plunder the treasuries of its political subdivisions…without putting the existence of the States in jeopardy,” writes AAPS.

The onerous burdens that the MXPs lay on the States continue into the indefinite future. In effect, the MXPs place federal and State spending on “auto pilot” beyond the end of the term of this Congress, thus withholding legislative power from future Congresses and veto power from future Presidents.

Additionally, directing States to spend money in particular ways is not among the Constitutionally enumerated powers of Congress.

If the MXPs are unconstitutional, then the ACA must be declared unconstitutional in its entirety, AAPS argues, citing AAPS’s separate amicus brief filed on Jan 6 on the issue of severability and the individual mandate. “Severance, in the absence of a severability clause, wreaks havoc on the Constitution’s system of checks and balances and ignores the Separation of Powers doctrine,” states the AAPS brief.

The AAPS brief on the Medicaid provisions is available at: .

AAPS Brief on Severability Issue – Filed 1/6/2012
On Friday January, 6, 2012 AAPS along with individual physicians submitted a third brief in as many months advising the Supreme Court that the individual mandate in the Patient Protection and Affordable Care Act is unconstitutional and that the entire law must be thrown out.

The Citizens’ Council for Health Freedom also joined AAPS in this brief. The CCHF exists to support patient and doctor freedom, medical innovation and the right of citizens to a confidential patient-doctor relationship. Learn more about CCHF at

The amicus brief reads in part:

“ACA undermines, in fundamental and dangerous ways, the practice of medicine, and harms patients. Amici argue that severance of the individual mandate of Section 1501 without invalidating all of ACA will improperly burden the practice of medicine as well as the dockets of this Court, the Courts of Appeals and the District Courts, for many years to come.”

A PDF version of the entire brief is available at:

Immediately following the signing of PPACA in March 2010, AAPS filed suit in United States District Court,, to stop the law and has filed numerous amicus briefs to support the other cases brought against ObamaCare, to inform the courts that “ACA undermines, in fundamental and dangerous ways, the practice of medicine, and harms patients.”

Information about these other legal actions taken by AAPS to combat ObamaCare in the courts can be found at

AAPS, a national organization of physicians in all specialties, was founded in 1943 to preserve and promote the practice of private medicine and the sanctity of the patient-physician relationship.

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