Doctors Ask Appeals Court to Declare ObamaCare Unconstitutional

In an amicus brief filed today in support of the Commonwealth of Virginia’s case against the Affordable Care Act (ACA), physicians ask the U.S. Court of Appeals for the Fourth Circuit to affirm the unconstitutionality of the individual health insurance mandate (Section 1501), and also to hold that it is not severable from the rest of the Act.


The brief is filed by the Association of American Physicians and Surgeons (AAPS) and several individual physicians.

“ACA is the most divisive, harmful, and unconstitutional legislation enacted by Congress in a generation,” observes AAPS counsel Andrew Schlafly. In addition to Virginia, 27 other states have challenged ACA’s constitutionality.

The individual mandate cannot be justified under the Commerce Clause, which allows Congress to regulate commerce “with” the Indians, “among” the several States, or “with” foreign nations. AAPS argues that no commerce is involved in an individual’s decision not to purchase government-approved health insurance. All types of commerce must involve at least two parties, such as a buyer and a seller, or a borrower and a lender.

Congressional “findings” as regarding a “substantial effect on the economy,” are not entitled to deference, AAPS argues. In the case of ACA, they are based on assumptions and extrapolations, some of which contradict each other.

Various portions of ACA also contradict each other. Sections 1501 and 10106, enacted simultaneously, contain incompatible definitions of “penalty amount.” The process of simultaneously enacting and revising the ACA violates the Presentment Clause.

“This unconstitutional practice completely infects ACA. Indeed, … Congress attempted to simultaneously enact and amend more than ninety ACA provisions,” AAPS notes.

The ACA is also an assault on patient privacy. To enroll in an insurance plan, patients must routinely divulge their entire medical history. The right to a “private enclave” has been recognized in many court decisions, and underlies Fourth and Fifth Amendment jurisprudence. Under ACA, patients have fewer privacy rights than perpetrators of violent crimes.

AAPS argues that the attempt to sever the individual mandate and preserve the rest of the law amounts to an impermissible “judicial line-item veto.” Moreover, both Congress and the Administration have argued that the law cannot function without the mandate. Thus, it must be voided in its entirety.

CLICK HERE to read and/or download the AAPS amicus brief.

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.