There is No Judicial Line-Item Veto, Argue Doctors in Brief Challenging Affordable Care Act

Oct 26, 2011, 14:52 ET from Association of American Physicians and Surgeons (AAPS)

TUCSON, Ariz., Oct. 26, 2011 /PRNewswire-USNewswire/ -- In an amicus curiae brief filed yesterday—one of the first to be submitted to the Supreme Court of the United States regarding the upcoming challenge to the Patient Protection and Affordable Care Act, physicians explain why the Act should be overturned in its entirety.

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

"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.

"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."

Presidential line-item vetoes have been held to be unconstitutional. 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.

The idea of joining the judiciary 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 Leah S. McCormack, M.D., Past-President of the Medical Society of the State of New York; Guenter L. Spanknebel, M.D., Past-President of the Massachusetts Medical Society; Janis Chester, M.D., a psychiatrist in Delaware; and Graham Spruiell, M.D., a psychiatrist who practices near Boston.

AAPS also argues that while Congress has the power to regulate interstate commerce, the regulated activity must actually be commerce, not just something that might sometime affect commerce. 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. The total number of separate relationships would be a 135-digit number (2 to the 449th power).

AAPS ( 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.

SOURCE Association of American Physicians and Surgeons (AAPS)