AAPS Asks Supreme Court to Review Challenge to Employer Mandate

TUCSON, Ariz., Dec. 14, 2015 /PRNewswire-USNewswire/ -- In an amicus brief filed today, the Association of American Physicians and Surgeons (AAPS) asks the U.S Supreme Court to grant a writ of certiorari in the case of Stephen F. Hotze, M.D., and Braidwood Management v. Sylvia Mathews Burwell and Jacob J. Lew. This case challenges the employer insurance mandate of the Affordable Care Act (ACA), which, it argues, is unconstitutional because its enactment violated the Origination Clause of the U.S. Constitution.

This Clause requires that all revenue-raising bills originate in the House of Representatives.

"ACA is basically the Harry Reid bill," notes AAPS executive director Jane M. Orient, M.D. The amicus states that ACA was drafted in the Majority Leader's office, "outside the usual committee process." The legislative process "reduced to backroom horse-trading to secure the moderate members of the majority caucus, without inviting input from the Senate minority."

The Fifth Circuit dismissed the case, the amicus explains, opining that the Anti-Injunction Act ("AIA"), 26 U.S.C. §7421(a), precludes businesses from bringing pre-enforcement challenges to the employer mandate (tax).

Attorney Lawrence J. Joseph argues in the amicus that the AIA does not apply to so-called regulatory taxes, as several other circuit courts of appeals have held for ACA, nor does it preclude pre-enforcement challenges to illegal or unconstitutional taxes. Moreover, employers like Braidwood lack any post-enforcement remedies to recoup a tax they never paid. To avoid a $100 per day per individual tax (or penalty) Braidwood purchased ACA-compliant insurance for its employees at inflated premiums. Finally, even without ruling on ACA's tax penalties themselves (as taxes), a federal court would have jurisdiction to enjoin ACA's unconstitutional intrusion into the health-insurance marketplace.

Because of ACA's coercive intrusion, Braidwood could no longer purchase the pre-ACA low-cost insurance with the options it preferred, Joseph writes. ACA has "reduced market choices, increased prices, and limited some features that Braidwood and its employees valued."

"Some may say that after a couple of big setbacks to challengers in the Supreme Court ACA is 'here to stay,'" Orient writes. "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."

The Association of American Physicians and Surgeons (AAPS) is a national organization representing physicians in all specialties since 1943.

SOURCE Association of American Physicians and Surgeons (AAPS)

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