United States Court of Appeals, District of Columbia Circuit
ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS AND ALLIANCE FOR NATURAL HEALTH USA, APPELLANTS
KATHLEEN SEBELIUS, SECRETARY OF HEALTH & HUMAN SERVICES, IN HER OFFICIAL CAPACITY, ET AL., APPELLEES
Argued January 10, 2014
Appeal from the United States District Court for the District of Columbia. (No. 1:10-cv-00499).
Lawrence J. Joseph argued the cause and filed the briefs for appellants.
Dana L. Kaersvang, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Mark B. Stern, Attorney. Alisa B. Klein, Attorney, U.S. Department of Justice, entered an appearance.
Before: ROGERS, Circuit Judge, and WILLIAMS and SENTELLE, Senior Circuit Judges.
Williams, Senior Circuit Judge.
Plaintiff-appellants Association of American Physicians & Surgeons, Inc. and Alliance for Natural Health USA sued the Secretary of Health and Human Services and the Commissioner of the Social Security Administration in district court, raising a wide variety of claims: (1) constitutional challenges to the Patient Protection and Affordable Care Act (" ACA" ), (2) statutory (including Administrative Procedure Act) challenges to actions of HHS and the Commissioner relating to the implementation of ACA and prior Medicare legislation, and (3) a somewhat amorphous attack on the failure of the defendants to render an " accounting" that would (they argue) alert the American people to the insolvency towards which the Medicare and Social Security programs are heading. The district court dismissed the challenges variously for lack of jurisdiction or for failure to state a claim upon which relief can be granted. Association of American Physicians & Surgeons, Inc. v. Sebelius, 901 F.Supp.2d 19 (D.D.C. 2012) (" AAPS I " ); see Fed.R.Civ.P. 12(b)(1), (6). Each of the challenges ultimately fails, for the reasons set forth below.
We take the constitutional claims first. If successful, they would radically alter the
context for the statutory claims, while there is no chance that the statutory claims, if successful, would avoid the constitutional questions.
Appellants attack 26 U.S.C. § 5000A, often spoken of informally as the ACA's individual health insurance mandate, which was sustained as a valid exercise of the taxing power in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (" NFIB " ). Id. at 2593-2600; Id. at 2609 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ., concurring) (agreeing that " the minimum coverage provision is a proper exercise of Congress' taxing power" ). They argue that the tax violates both the Fifth Amendment's prohibition of the taking of private property without just compensation and the origination clause, U.S. Const. art. I, § 7, cl. 1, which provides that " All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."
As to takings, the district court applied the Supreme Court's opinion in Brushaber v. Union P. Railroad Co., 240 U.S. 1, 24-25, 36 S.Ct. 236, 60 L.Ed. 493, T.D. 2290 (1916), holding that an otherwise valid tax could run afoul of the takings clause only in a " case where, although there was a seeming exercise of the taxing power, the act complained of was so arbitrary as to constrain to the conclusion that it was ...