Supreme Court Decision Analysis
AAPS President speaks outside Supreme Court in March
Supreme Court Decision Analysis

Statement from AAPS Executive Director, Jane Orient, M.D.

This is a bleak day for America. The US Supreme Court has upheld a blatantly unconstitutional law of enormous scope that affects every American. The federal government has no constitutional authority to dictate how Americans shall pay for their medical care. It has no right to force them to turn over their earnings for the profit of private insurers or for the "public use," such as providing "free" services that a federal agency dictates people should have. It is most distressing that the Supreme Court has validated the corrupt, dishonest process by which this law was enacted: the "penalty" for noncompliance with the mandate was repeatedly said not to be a tax, until it suddenly became one.

As the Court said, it's up to the people: to repeal the law, defund it, and resist its implementation. States are not required to implement Exchanges or to take the bait for Medicaid expansion, and should not do so. Physicians are not required to sign up for "Accountable Care Organizations," and should not betray their patients by doing so.


CLICK HERE to read analysis from AAPS General Counsel Andrew Schlafly at

After winding through the courts for over two years, this Thursday, June 28, beginning at about 10:15am Eastern, the U.S. Supreme Court is expected to render its decision on the ObamaCare litigation.

The AAPS General Counsel, Andrew Schlafly, Esq., will provide immediate legal analysis of the decision, which you can review after the court ruling at His comments will also be posted to the AAPS website at

The outcome of this case has enormous implications for the freedom of every American.

AAPS has taken every opportunity to educate the courts about why ObamaCare must be fully thrown out before it does irreparable harm to patients and to the practice of patient-centered medicine.

Three days after the law was signed, AAPS filed a suit in federal court, which is still pending, and has also filed 8 amicus briefs in U.S. Courts of Appeals and the U.S. Supreme Court, in addition to a motion to intervene .  Learn more about AAPS efforts before the courts at the AAPS website and at

Regardless of the Court's decision, AAPS will continue to work to see that all of this dangerous legislation is stopped. In addition, AAPS will continue advocating for measures that give power and freedom back to patients and their doctors and take it away from Washington and insurance company bureaucrats.

The Supreme Court completed three days of oral arguments back in late March. During the arguments, AAPS President Alieta Eck, MD, spoke outside the Court to voice physician-opposition to the law. Based on the questions and statements of the Justices, there is reason to be optimistic that the court will invalidate the individual mandate and perhaps much of the rest of ObamaCare as well.

AAPS General Counsel, Andrew Schafly, compiled an analysis of the 4 sessions of arguments which you can find below:

Analysis of Monday -- the Anti-Injunction Act Issue

Click for audio and written transcript


During oral argument Monday morning, not one Supreme Court Justice suggested that the Court could not rule immediately on the constitutionality of the individual mandate!

The argument this morning concerned an effort to recharacterize the penalty for not purchasing health insurance as a "tax". If the penalty is a tax, then the Tax Anti-Injunction Act might apply to prevent court review until after the tax is collected in 2014 or 2015.

Even two Democrat-appointed Justices seemed to reject the argument of ObamaCare supporters that the penalty is a "tax" that would preclude Court review at this time:

"Here, they did not use that word tax," Justice Stephen Breyer observed in reference to what lawmakers said and intended.
"This is not a revenue-raising measure," Justice Ruth Bader Ginsburg also said.

Some concern had been expressed that Justice Antonin Scalia might prefer to limit Court jurisdiction over ObamaCare at this time, but he also suggested by his questioning that there was no obstacle presented by the Tax Anti-Injunction Act to deciding at this time whether ObamaCare is constitutional.


Analysis of Tuesday -- the Individual Mandate Issue

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Tuesday morning featured the biggest issue of all: is the individual mandate constitutional? Oral argument began at 10am Eastern Time:

Update at 12:25 Eastern Time: it appears that the Individual Mandate will likely lose!

  • Justice Anthony Kennedy asked questions suggesting that he is concerned about the impact of the mandate on individual liberty.

Justices Anthony Kennedy, Antonin Scalia and Samuel Alito, and Chief Justice John Roberts -- who would comprise a majority along with Justice Clarence Thomas -- asked questions implying that they are very skeptical that the Individual Mandate is constitutional:

  • "The federal government is not supposed to be a government that has all powers. It’s supposed to be a government of limited powers." - Justice Scalia's comment to the government attorney who is defending the mandate. Justice Scalia also said, “You’re not regulating health care. You’re regulating insurance." Justice Scalia also echoed a concern raised by Senator Tom Coburn during a Senate confirmation hearing for now-Justice Elena Kagan, asking if government can force people to purchase broccoli.
  • Justice Alito observed, "the mandate is forcing these people to provide a huge subsidy to insurance companies." The Individual Mandate compels healthy young persons to pay for care "that will be received by somebody else," Justice Samuel Alito stated. Justice Alito also suggested that if the federal government could require people to purchase health insurance, then they could even require people to buy burial insurance.
  • The Individual Mandate is telling someone “that it must act. That changes the relationship of the government to the individual in a fundamental way.” - Justice Kennedy's comment to the government attorney. Justice Kennedy then asked the Obama Administration attorney to satisfy a "very heavy burden of justification" to demonstrate that the Constitution authorizes Congress itself to alter the relationship of government to the individual.
  • Chief Justice John Roberts observed, "Once you’re into interstate commerce and can regulate it, pretty much all bets are off." "Can the government require you to buy a cell phone?” because people may need one to seek emergency aid, Roberts asked.
On the other side, the Justices and Solicitor General defending the mandate, perpetuate the dangerous myth that insurance coverage equals access to care. Patients in countries with nationalized health insurance, like Canada and the UK, would disagree. True insurance would protect against financial loss due to catastrophic events, not pay for or micro-manage routine care.

Here are some quotes from the proponents of ObamaCare that demonstrate the pervasiveness of this erroneous thinking:

  • Page 1: GENERAL VERRILLI: Insurance has become the predominant means of paying for health care in this country. But for .. Americans who do not have access to health insurance ... the system does not work.
  • Page 21: JUSTICE SOTOMAYOR: If you use health services, you have to pay with insurance. Because only insurance will guarantee that whatever need for health care that you have will be covered.
  • Page 22: GENERAL VERRILLI: The Congress enacted reforms ... to deal with ... people not being able to get insurance and therefore not access the health care environment.
  • Page 64: JUSTICE KAGAN: I mean, health insurance exists only for the purpose of financing health care. ... We get it so that we can go and access health care.
  • Page 69: JUSTICE KAGAN: Well, we are talking about the health insurance market, which is designed to access the health care market.

The attorneys opposing ObamaCare have a better understanding:

  • Page 65: MR. CLEMENT: I think what health insurance does and what all insurance does is it allows you to diversify risk. And so it's not just a matter of I'm paying now instead I'm paying later. That's credit. Insurance is different than credit.
  • Page 97: MR. CARVIN: One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people be -- could get thrown out of emergency rooms. ... They create this strawman that says look, the only alternative to doing it the way we've done it, if we condition access to health care on buying health insurance.

Analysis of Wednesday morning -- the Severability Issue

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This Wednesday morning the Court held oral argument on the Severability Issue - whether the Individual Mandate, if found to be unconstitutional, may be severed from the remainder of ObamaCare in order to uphold the rest. Here is an analysis of the argument:

A majority of the Court (the five Justices on the conservative side) appear to favor invalidating substantial portions of ObamaCare, assuming the Individual Mandate is found to be unconstitutional, and at least four Justices (sans Kennedy) appear to favor invalidating all of ObamaCare:

  • Justice Samuel Alito pointed out that if legislative intent is the issue, then ObamaCare would not have passed at all without its Individual Mandate. So if the Individual Mandate is unconstitutional, then all of ObamaCare should be invalidated. Moreover, Justice Alito echoed the concern of Justice Kennedy that it would be unfair to force insurance companies to comply with other costly aspects of ObamaCare without the subsidy of the Individual Mandate.
  • Justice Antonin Scalia expressed concern about "legislative inertia" as a need to declare the entire bill unconstitutional, because Congress may not act quickly to correct problems with a partial upholding of the law.
  • Chief Justice John Roberts inferred a key concession by the Obama Administration attorney that if the Individual Mandate is unconstitutional, then the requirement that insurance companies accept pre-existing conditions must be invalidated also. The Chief Justice also expressed concern about opening the door to new litigation if parts of ObamaCare were left in place without the Individual Mandate. And he repeated the justifications implied by Justices Scalia and Alito for invalidating the entire law. Earlier, perhaps offering an easy-to-answer question to our side, he observed that portions of the law have "nothing to do" with the Individual Mandate, and that Congress would have enacted those portions regardless (e.g., black-lung benefits). But the predictable response was that this benefit was a sweetener added to pass the controversial bill, and this sweetener may not have passed on its own. An added bonus during questioning was when Chief Justice Roberts asked if ObamaCare should survive if the Medicaid expansion provision is invalidated, a point that AAPS has emphasized in arguing for invalidation of ObamaCare based on its unconstitutional expansion of Medicaid.
  • Justice Kennedy, widely perceived to be the swing fifth vote, declared that "leaving just part of the act might be more extreme than striking the whole thing." And he clearly expressed his concern that salvaging parts of ObamaCare would impose a burdensome "risk" on insurance companies "that Congress never intended." In addition, Justice Kennedy questioned whether the Court has the competence or expertise to pick and choose in excruciating detail what should survive in the complex law. But he also asked more general questions about which legal test should be applied in order to divine the congressional intent about severability.

The liberal wing of the Court, consisting of four Justices, appeared solidly in favor of salvaging parts of ObamaCare:

  • Justices Ruth Bader Ginsburg and Elena Kagan, who likely would uphold the Individual Mandate, indicated their view that other portions of the law should be upheld even if the mandate is invalidated. But these Justices indicated that the three key provisions of ObamaCare (the individual mandate, community rating and guaranteed issue) are linked such that if the Individual Mandate is invalidated, then the other two provisions should likely be invalidated too).
  • Justice Stephen Breyer suggested that complex issues about which parts of ObamaCare to salvage could be remanded back to district court, or to a special master, but this suggestion seemed to lack support by a the majority of the Court.
  • Sonia Sonia Sotomayor -- who asked the first question during oral argument -- inquired of our side, "Why shouldn't we let Congress" make these decisions. "What's wrong with leaving it in the hands of people," and "not us?" The attorney for the states, Paul Clement, responded that if the Individual Mandate is invalidated, then the entire law is nothing more than a "hollowed-out shell."

Bottom line: all of the key parts of ObamaCare seem likely to be invalidated. Moreover, as a practical matter, it would be an almost impossible task for the Court to pick and choose what to uphold among the mammoth law, given the likelihood that key parts of it depend on the unconstitutional mandate. Justice Scalia said it would be "totally unrealistic" for the Court to try to salvage parts of the 2,700-page ObamaCare, assuming the mandate is unconstitutional.

Analysis of Wednesday afternoon -- the Medicaid expansion issue

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Justices from the liberal side of the Supreme Court frequently interrupted the attorney for the states with questions suggesting that there are at least four strong votes for upholding the Medicaid expansion. The states' attorney had a difficult time under the questioning, and resorted to asking the Supreme Court to set a new precedent. "Establish a beachhead, say that coercion matters," the states' counsel said as he weakly tried to wind up his argument (but the argument extended past his allotted 30 minutes due to even more questioning). Asking the Supreme Court to make a new precedent is the weakest argument on which to rely.

  • Justice Elena Kagan, who worked for the Obama Administration before being nominated by President Obama to the U.S. Supreme Court, almost immediately asked the states' attorney, "Why is a big gift from the federal government a matter of coercion? It's just a boatload of federal money. It doesn't sound coercive to me, let me tell you."
  • Justice Stephen Breyer emphasized that the federal government (Health and Human Services Secretary) can only act reasonably in excluding a state from the Medicaid program, and rhetorically asked the states' counsel, "Now, does that relieve you of your fear?" (of states being kicked out of the Medicaid program if they do not agree to the expansion). The response was no, because ObamaCare seems to give the federal government broader powers to exclude states. Indeed, the states' counsel pointed out, HHS officials have already implied to states that they might have to drop out (at an enormous cost to the states) if they did not accept the broad new expansion of the Medicaid program.
  • Justice Ruth Bader Ginsburg pointed out that only 26 states challenged the Medicaid expansion, and suggested it would be unfair to invalidate it for the remainder who do want to participate in it.

The conservative Justices offered little support for the states' counsel during his or the government's argument:

  • Justice Samuel Alito had the strongest statements against the Medicaid expansion, expressing the need for meaningful limits on federal coercion of states.
  • Chief Justice John Roberts suggested that the states had already agreed, based on their participation in Medicaid so far, to more conditions by the federal government as part of the Medicaid expansion in ObamaCare. Indeed, the Chief Justice suggested, the states have little basis for being surprised if the strings are later pulled back by the federal government, which would leave the states stuck with the enormous expense of covering far more poor people.
  • Justice Antonin Scalia invited the states' counsel to continue his argument despite the frequent interruptions, commenting that the Supreme Court has been "on pins and needles here" during the intense argument. Justice Scalia then shifted to humor over substance, asking the states' attorney whether he noticed that the 26 states opposing the law had Republican governors while the others were led by Democrats (N.B. that's not entirely true, as both New Mexico and New Jersey have Republican governors who declined to challenge the law.)

BOTTOM LINE: A split doubleheader today: not enough conservative Justices appear willing to strike down the Medicaid expansion, although they are willing to invalidate most of ObamaCare. The liberal side emphatically wants the Medicaid expansion portion of ObamaCare to remain law, and it appears that will be the silver lining for the Left. So the Medicaid expansion will likely be upheld.