AAPS claims Obamacare employer mandate unconstitutional

By Jessica Davis
02:23 PM
Association of American Physicians and Surgeons says bill was not drafted in Congress and should be voided.
White House

The conservative Association of American Physicians and Surgeons on Monday challenged the employer insurance of the Affordable Care Act, asking the U.S. Supreme Court to grant a writ of certiorari in the case of Stephen F. Hotze, MD, and Braidwood Management v. Sylvia Matthews Burwell and Jacob J. Lew.

The amicus brief argues the constitutionality of ACA, as they feel it violates the Origination Clause of the U.S. Constitution requiring all revenue-raising bills to originate in the House of Representatives.

"ACA is basically the Harry Reid bill," AAPS Executive Director Jane M. Orient, MD, said in a statement. Harry Reid is the U.S. Senator for Nevada and Senate Democratic Leader. 

The Affordable Care Act was drafted in Reid's office, the amicus reads, "outside of the usual committee process."

[See also: Supreme Court upholds subsidies in 6-3 vote.]

The authors stress the legislative process has been "reduced to backroom horse-trading to secure the moderate members of the majority caucus, without inviting input from the Senate minority."

Braidwood Management purchased ACA-compliant insurance with inflated premiums for its employees to avoid $100/day individual penalties, the amicus states.

The case argues Braidwood was unable to purchase the pre-ACA, low-cost insurance with preferred options. Not to mention ACA has "reduced market choices, increased prices and limited some features Braidwood and its employees valued."

The Fifth Circuit dismissed the case, citing the Anti-Injunction Act, which inhibits businesses to bring pre-enforcement challenges to employer mandates, the amicus states. However, attorney Lawrence J. Joseph writes in the brief, AIA doesn't apply to these "so-called regulatory taxes" - an opinion other circuit courts of appeals have maintained for ACA. It also doesn't rule out illegal or unconstitutional taxes to pre-enforcement challenges.

A federal court could rule on the unconstitutional intrusion of the ACA into the insurance market, the authors add.

The Supreme Court has already rejected to delve into employer mandates of Obamacare in the past. In 2013 a Liberty University petition was rejected by both lower and higher courts.

In 2012, the Supreme Court upheld ACA's individual mandate in the Hobby Lobby craft-store chain and Conestoga Wood Specialities' suit brought by 26 states and the National Federation of Independent Businesses. However, the Court ruled the Medicaid expansion must be optional.

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"Some may say that after a couple of big setbacks to challengers in the Supreme Court, ACA is here to stay. But because of its sloppy drafting, frenzied enactment and widespread destructive effects on freedom, the economy and the practice of medicine, there will be legal challenges as long as it is in effect," Orient wrote.

Founded in 1943, the Association of American Physicians and Surgeons bills itself as a  non-partisan, professional physician group advocating for private practice medicine, though its causes are often tied to conservative platforms.

Twitter: @JessieFDavis