Petition for Writ of Certiorari — Anderson v. Obama

19-612 Nov -5 2010

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2010

DANIEL G. ANDERSON, et al.,

Petitioners,

Versus

BARACK HUSSEIN OBAMA,

in his official capacity

as President of the United States,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Rudolph Martin Palmer, Jr.

Law Offices of Martin Palmer

21 Summit Avenue

Hagerstown, MD 21740

(301) 790-0640

(301) 790-0684 (Facsimile)

info@martinpalmer.com

Attorney for Petitioners

QUESTIONS PRESENTED

1. When the nation watches its President-Elect take a

solemn oath (upon the Lincoln Bible) to “. .. preserve,

protect and defend the Constitution of the United

States” and then that same President willfully uses the

full force of his leadership to aid and abet the subversion

of Article I, Section 7 of the Constitution and ignores

protests of that subversion to sign into law that which

subverted the Origination Clause of the Nation’s

Constitution, has the President Abnegated his oath of

office?

2. Does the will of a Chief Executive and his party in

power (be it Democratic or Republican) trump the

Constitution so that a law once passed without a single

bipartisan vote can become the law of the land or is that

law trumped by failed compliance with Article I, Section 7

of the Constitution?

3. Given that the Origination Clause requires that any

revenue-raising measure originate in the House and the

instant bill estimated to raise $100 Billion in revenue

originated in the Senate, can the Administration sustain

and enforce it?

4. Did the current Chief Executive breach the ‘wall of sep-

aration of powers’ by usurping the powers of the leg-

islature, becoming in essence the ‘chief legislator’?

5. Does the use of a ‘shell bill’ by the Senate as a vehicle

for passing the PPACA H.R. 3590 cure failed compliance

with the Origination Clause?

6. Did the Fourth Circuit err or abuse its discretion in

summarily dismissing Petitioners’ appeal for failure to

present a substantial federal question given Petitioners’

argument regarding violation of the Origination Clause,

i.e., that the Senate violated the Clause by using a ‘shell’,

non-revenue raising House bill as a vehicle to originate a

Senate revenue-raising measure?

7. Did the Fourth Circuit err or abuse its discretion in

summarily dismissing Petitioners’ appeal for lack of

Article III standing?

8. Did the District Court err or abuse its discretion in

denying plaintiffs-petitioners’ motion for leave to file a

second amended bill of complaint that set fevih an

Origination Clause challenge to obamacare?

li

LIST OF ALL PARTIES TO THE PROCEEDING

Plaintiff Daniel G. Anderson is a citizen of Maryland who

resides in Chevy Chase, Maryland, and who holds a

degree in economics from Yale University, and is a former

officer in the U.S. Navy and a veteran of the Korean War.

Plaintiff William Colliton, M.D. is a citizen of Maryland

who resides in Bethesda, Maryland, and is currently a

Clinical Professor of Obstetrics and Gynecology at George

Washington University Medical Center in Washington,

D.C.

Plaintiff Richard P. Delaney, M.D. is a citizen of Maryland

who resides in Silver Spring, Maryland, and is currently a

General Practitioner with an active family practice of over

fifty (50) years.

Plaintiff Richard Loria, M.D. is a citizen of Virginia who

resides in McLean, Virginia, whose medical specialty is

Allergy and Immunology and who currently works as a

lecturer to the medical profession.

Plaintiff Lorenzo Marcolin, M.D. is a citizen of Maryland

who resides in Potomac, Maryland, and is an orthopedic

physician.

Plaintiff Gaetano Molinan, M.D. is a citizen of Maryland

who resides in Chevy Chase, Maryland, and is currently a

Neurologist and the Chairman Emeritus of the

Department of Neurology at George Washington

University in Washington, D.C.

Plaintiff James Ronan, M.D. is a citizen of Maryland who

resides in Potomac, Maryland, and is a cardiologist and

the author of cardiology textbooks that are used in the

medical profession.

Plaintiff Edward Sheridan, M.D. is a citizen and resident

of Washington, D.C. and a federal taxpayer who is a psy-

chiatrist and the former Chairman of the Department of

Psychiatry at Georgetown University.

Plaintiff Edward Soma, M.D. is a citizen of Maryland who

resides in Kensington, Maryland, and is a radiologist, the

Founding Chairman of the Department of Radiology and

Nuclear Medicine of Holy Cross Hospital, and the former

Chairman of the Board of the Danny Thomas St. Jude’s

Children’s Hospital in Memphis, Tennessee, having served

as a member of its Board for over 40 years.

Plaintiff Ronald Uscinski, M.D. is a citizen of Virginia who

resides in Great Falls, Virginia, and is a neurosurgeon and

a graduate of the Georgetown University School of

Medicine, a Senior Surgeon with the U.S. Public Health

Service, and an Assistant Professor in the Department of

Neurological Surgery, Georgetown University and George

Washington University.

Jennifer R. Boyer (Plaintiff in proposed Second Amended

Complaint) is a citizen and resident of Washington, D.C.

who is a graduate of the University of Kentucky and has

been admitted to the University of Kentucky’s medical

school.

Defendant Barack Hussein Obama, is the current

President of the United States.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............... errr i

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PRES oo nr) so eho a Raa ee eee es 1

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED..................... 1

STATEMENT OF THE CASE ..................... 2

REASONS WHY THE PETITION

SHOULD BE GRANTED ................... 10

I. The Fourth Circuit Decided A Novel And

Important Question of Federal Law Regarding

Respect for and Compliance with the Origination

Clause That Should Be Settled By This

oh SRN ta Pept ao ts eS ide het tale Laren a 10

A. The Senate Bill Is One for Raising

oad g v5 o's 2a bos ne oe a ae 12

TABLE OF CONTENTS (Cont.)

Page

B. The PPACA Originated in the Senate ....... 15

C. The Claim Is Justiciable And

ae 17

D. The Claim Presents a Substantial

PE EER ov ccc eee cates esesaces 18

E. Summary: The Origination Clause

Should Be Given “Teeth”. .........cceccecces 19

II. The Fourth Circuit Decided Novel And Important

Questions Of Federal Law RegardingThe Standing Of

Taxpayers, Physicians, And Pre-Med College Graduates

Ce yy | 6 rrr 21

A. Petitioner-Physicians Have Standing to Protect

The Patient-Physician Relationship and Avoid

Deficient Care for Their Patients ............. 22

B. The Proposed Additional Plaintiff, A

Pre-Med Graduate, Has Standing Where

Obamacare Has Caused Her to No Longer Care

About Her Dream of Becoming a Physician, She

Having Suspended Her Plans................ 31

TABLE OF CONTENTS (Cont.)

C. Petitioners Have Taxpayer Standing

Sper ree ca es as Ges Od oa a ds 32

ee ers

I eo a es a ee 33

APPENDIX

(APPENDIX VOLUME BOUND SEPARATELY)

Order entered August 30, 2010 by the

Fourth Circuit, denying Appellants-

Petitioners’ Motion for Temporary Injunction

PII, 5 oo sa hk web Oe awa usec aes A-5

Order entered September 8, 2010 by the

Fourth Circuit, denying Appellants-

Petitioners’ Motion for Reconsideration,

denying Appellants-Petitioners’ Motion for

Expedited Appeal, and Granting Appellee-

Respondent’s Motion to Dismiss the

Judgment of the Fourth Circuit, entered

September 8, 2010, dismissing the appeal... . A-7

TABLE OF CONTENTS (Cont.)

Oral Opinion of District Court issued on

es Gw head ee ens A-8

Order entered on March 19, 2010 by

the District Court, granting Defendant-

Respondent’s Motion to Dismiss the

original complaint with prejudice as to

Defendant Barack Obama, deeming

service of Plaintiff-Petitioners’ motion

for leave to file a second amended

complaint accomplished as to Defendants

Nancy Pelosi, Steny Hoyer, and James

Clyburn, allowing Defendants Pelosi,

Hoyer, and Clyburn fourteen (14) days

to file an opposition to the motion to

amend, and allowing Plaintiffs-

Petitioners an additional fourteen (14)

Ge I, 6 vk ce cee ccc cecececeas A-29

Memorandum Opinion issued by the

District Court, dated July 27,2010......... A-30

Order entered by the District Court on

July 28, 2010, denying Plaintiffs-

Petitioners’ Renewed Motion for

Preliminary Injunction; Denying

Plaintiffs-Petitioners’ Motion to Amend/

Correct Amended Complaint as to

viii

TABLE OF CONTENTS (Cont.)

Page

Defendant-Respondent President Obama

and deferring motion as to proposed

additional defendants Pelosi, Hoyer,

and Clyburn; Denying Plaintiffs-

Petitioners’ Motion to Deem Opposition

to Plaintiffs’ Motion to Amend Waived;

denying Plaintiffs-Petitioners’ Motion

for Reconsideration; and finding

moot Plaintiffs-Petitioners’ original

Motion for Preliminary Injunction......... A-37

Plaintiffs-Petitioners’ Notice of Dismissal

of Proposed Second Amended Complaint

as to the House leadership filed August 10,

BN 4 5 680469009 00%6080 0 Tee A-39

Order entered by the District Court on

August 11, 2010, approving Plaintiffs-

Petitioners Notice of Dismissal of

Proposed Second Amended Complaint,

and directing the Clerk of tne Court to

ID nick ccc cece ce enecedeual A-41

US. Const. ArtI,$ 2,cl.1...........ccccee. A-42

U.S. Const. Art. 1,98 3,cl1......ccccvsnvees A-43

U.S. Const. Art.1,9 7,cl.1.......cccceveees A-44

ix

TABLE OF CONTENTS (Cont.)

Page

sc caccesseeseseve A-45

Affidavits of Richard P. Delaney, M.D.,

dated January 4, 2010, March 17, 2010,

and May 19, 2010............. A-87, A-46, A-92

Affidavit of Ronald Uscinski,M.D..... A-49, A-103

Affidavit of Jennifer Boyer........... A-52, A-106

Plaintiff-Petitioners’ Renewed Motion for

Preliminary Injunction, filed March 18,

RE ete eos eS a a's 0-4 608.6 0 8.3 A-54

Memorandum of Law in Support of Renewed

Motion for Preliminary Injunction, filed

ee ee acts si eee eee A-56

Plaintiff-Petitioners’ Motion for Leave to

File Second Amended Complaint, filed

cece cc eeubavesceeceers A-65

Proposed Second Amended Complaint,

filed March 18, 2010, with attached

da yn A A-66

Memorandum of Law in Support of Motion

for Leave to File Second Amended

Complaint, filed March 18,2010 ......... A-109

TABLE OF CONTENTS (Cont.)

Mage

Defendant-Respondent’s Memorandum in

Opposition to Plaintiffs-Petitioners’

Motion for Leave to File Second

Amended Complaint, filed Apri! 2,

cs oe ea ea ea a ete ache eee Oa A-115

Plaintiffs-Petitioners’ Reply to Defendant-

Respondent’s Opposition to Plaintiffs-

Petitioners’ Motion for Leave to File

Second Amended Complaint, filed April

UE 52058 Ge beds 3s 68S Oa eA Od ....A-118

Notice of Appeal, filed August 14,

aha eae et tere ate ai a A-135

Petitioners-Appellants’ Motion for

Temporary Injunction Pending Appeal,

with attached exhibits, filed August

8 RR er ee A-137

Defendant-Respondent’s Opposition to

Plaintiffs-Appellants’ Motion for

Temporary Injunction Pending Appeal

and Cross-Motion to Dismiss Appeal,

filed August 26,2010 .................. A-155

xi

TABLE OF CONTENTS (Cont.)

Page

Petitioners-Appellants’ Motion for

Reconsideration of Court’s Order

Denying Motion for Temporary

Injunction Pending Appeal, filed

September 1, 2010 ........... | .... A-168

H.R. 3590, “Service Members Home

Ownership Tax Act of 2009,” as

passed by the House on October 8,

OMe ree eer ee eee .....A-186

Federal Rule of Procedure 41(a)(1).........A-191

Letter to Senate Armed Services Committee

Signed by 20 US Senators Protesting

Obama Administration’s Threatened

Closure of Strategic Air Command Base in

Senator Ben Nelson’s State of Nebraska .. . A-192

xii

TABLE OF AUTHORITIES

Cases Page

Baines v. N.H. Senate President,

152 N.H. 124, 876 A.2d 768 (2005) ............ 12

Baker v. Carr,

ee, CA gcc cece ve wasevasans 17

Bobo v. Kulongoski,

338 Ore. 111, 107 P.3d 18 (2005) .............. 12

Carhart v. Stenberg,

972 F. Supp. 507 (D. Neb. 1997). ........... 24, 30

Corcoran v. United Healthcare, Inc.,

965 F.2d 1321 (9th Cir),

cert. denied, 506 U.S. 1033 (1992) ............. 24

Ex Parte Poresky,

BP AI PONE sg vn ccc sce e cers reaee pes 18

FEC v. Akins

me GA EE, DO CERO) nk ccc cee rce eves 23

Flast v. Cohen,

ee Re CD onc cc ccc cewescctusvewas 32

Flint v. Stone Tracy Co.,

Bae Ue. BE CEDET) onc ccc vc wacness 15, 16, 17

xili

TABLE OF AUTHORITIES (Cont.)

Cases (Cont.) Page

Goosby v. Osser,

gts at > | rr ae er eee 18

Lujan v. Defenders of Wildlife,

Ue Ee Oe CD 6 ov hw vee ce wwe wen ev ees 22

Made in the USA Found. v. U.S.,

242 F.3d 1300 (11th Cir),

cert. denied, 534 U.S. 1039 (2001) .......... 17,18

Nicodemus v. Union Pac. Corp.,

440 F.3d 1227 (10th Cir. 2006)................ 19

Rainey v. US.,

See We DRO CIOIEE) 06 cece cee esae 15, 16, 17

Rust v. Sullivan,

Ue Ga AERP ED codec kms cscapeseseeé and 30

School District of Abington Twp. v.

Schempp, 374 U.S. 203, 230 (1963)

(Douglas, J., concurring) .................... 11

Trammel v. United States,

Se ee CI 5 5-6 Koh hee ee kee eee 24

TABLE OF AUTHORITIES (Cont.)

Cases (Cont.) Page

Twin City Natl Bank v. Nebeker,

ge Be Ge 5 ae ee 14

U.S. v. Munoz-Flores,

BO a. 20 |) passim

U.S. v. New York Tel. Co.,

Pia) ge Be. sy ee 18

Washington v. Glucksberg,

oo eh Me Lh ss 24

Wiley v. NCAA,

612 F.2d 473 (10th Cir. 1979),

cert. denied, 446 U.S. 948 (1980) .............. 19

Statutes

ee OO, Bo oc na bee ee cee eee ee 12

ee a DS ee er 9,13,16

aE Eg OS Re SPS Re 12

ee oak week eae eeeeeawes 18, 19

xV

TABLE OF AUTHORITIES (Cont.)

Statutes (Cont.)

Health Care and Education Reconciliation Act

of 2010, Pub. L. 111-152,

124 Stat. 1029

Patient Protection and Affordable Care

Act of 2010, Pub. L. 111-148,

124 Stat. 119 [“PPACA”]

PPACA, § 1501 124 Stat. 242-49

PPACA, § 1513, 124 Stat. 253-56

PPACA, § 6301(a) (Sec. 1181),

124 Stat. 727-738

PPACA, § 6301(c) (Sec. 1182(c)(2) &

(d)(2AXii)), 124 Stat. 740-741

PPACA, § 9001, 124 Stat. 847-53

PPACA, § 9008, 124 Stat. 859-62

PPACA, § 9009, 124 Stat. 862-65

PPACA, § 9010, 124 Stat. 865-68

PPACA, § 9015, 124 Stat. 870-72

TABLE OF AUTHORITIES (Cont.)

Statutes (Cont.)

PPACA, § 9017, 124 Stat. 872-73 .......

PPACA, § 10106, 124 Stat. 906-911

uel. es SO Fs os 6s as 5 0a ee eee 9

Other

Affordable Health Care for America Act,

OE We, SU sé 6 6-44 he Oe ee eee 2

T. Brennan & D. Berwick, New Rules:

Regulation, Markets, and the Quality

of American Health Care

A ge a ree 26, 28, 29

C. DiGiovanni, M.D. and R. Moffitt, Ph. D.,

“How Obamacare Empowers the

Medicare Bureaucracy: What Seniors

and Their Doctors Should Know,” (The

Heritage Found. Aug. 24, 2010),

http://www. heritage.org/research/

reports/2010/08/how-obamacare-

empowers-the-medicare-bureaucracy-

what-seniors-and-their-doctors-

SPD 6k ko ke ee eee ee 29

TABLE OF AUTHORITIES (Cont.)

Other (Cont.) Page

Douglas Holtz-Eakin, Opinion, “The Real

Arithmetic of Health Reform,”

N.Y. Times, 03/20/2010,

http://www.nytimes.com/2010/03/2 1/

opinion/2lholtz-eakin.html.................. 32

Joint Committee on Taxation, Estimated Revenue

Effects of H.R. 3590, JCX-40-09

fe Pee eee er rere rr Tee 7,8

R. Kocher, E. Emanuel, and N. DeParle,

“The Affordable Care Act and the

Future of Clinical Medicine,”

Annals of Internal Medicine (Aug. 23,

2010), http://Awww.annals.org/content/

early/2010/08/ 23/0003-4819-153-5-

ZOIOIOISO-OOZT4.1. fall... ww ec cece 25

Jane M. Orient, M.D.,““Obamacare’:

What Is in It,” 15 Journal of Am. Phys. &

oe Pi} | a aa 24

Andrea Santiago, “The Medicus Firm Physician

Survey: Health Reform May Lead to

Significant Reduction in Physician

Workforce,” MEDICUS FIRM, Jan. 2010,

http://Awww.themedicusfirm.com/pages/

medicus-media-survey-reveals-impact-

I oo n,n gene e eae es ce ees 30, 31

XVili

TABLE OF AUTHORITIES (Cont.)

Other (Cont.) Page

Senate Amendment 2786, 111th Cong., submitted

11/19/09, agreed to in Senate by Yea-Nay

WE, Gr, EU og cco teas cesceeseveses 3

Service Members Home Ownership Tax Act

—f 8: & ee rere passim

Service Members Home Ownership Tax Act

of 2009, H.R. 35690, Preamble ............-.065-. 2

Service Members Home Ownership Tax Act

I EE. sy civ ce cee e bw avn eek 2

Joseph Story, Commentaries on the

Constitution of the United States

A vec aa aes ceeded 6544 ka eee 12

Shawn Tully, “Health care: Going from Broken

to Broke,” Fortune, 03/12/2010,

http://money.cnn.com/ 2010/03/12/

news/economy/debt_health_care.fortune/

Sa Na RC te ra A AED OER py 32

OPINIONS BELOW

The United States District Court for the District of

Maryland issued an oral opinion determining that the

original complaint should be dismissed, on March 18,

2010 (A - 8). The District Court, in denying Plaintiffs-

Petitioners’ motion for leave to file a second amended

complaint, issued a written memorandum opinion dated

July 27, 2010 (A - 30).

JURISDICTION

The judgment of the Fourth Circuit Court of

Appeals dismissing Petitioners’ appeal was entered on

September 8, 2010 (A - 6). Jurisdiction of this Court to

review the judgment of the Fourth Circuit is invoked

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED

US. Const. Art I, § 2, cl. 1.

US. Const. Art. I, § 3, cl. 1.

U.S. Const. Art. I, § 7, cl. 1.

28 U.S.C. § 1651(a).

Patient Protection and Affordable Care Act of 2010, Pub.

L. 111-148, 1501, 1513, 6301(a) & (c), 9001, 9008, 9009,

9010, 9015, 9017, and 10106, 124 Stat. 119, 242-49, 253-

56, 727-41, 847-53, 859-68, 870-73, 906-911.

STATEMENT OF THE CASE

“Origination” refers to “origination.” Lock, stock,

barrel: noun, verb, jot and tittle; every miniscule scrap of

the PPACA ORIGINATED only in the Senate, and

everybody knows it. Should this law stand, the

Origination Clause (part of the “Great Compromise of

1787”) falls. So falls as well our Constitution. The

essential question becomes: Quo vadis America?

This Petition raises fundamental questions of great

public importance: (1) whether the PPACA, the health

care reform legislation commonly known as “obamacare’”,

was passed in violation of the Origination Clause,

rendering the legislation void and unenforceable, and (2)

the standing and ability of Petitioners to challenge the

PPACA and obtain an injunction against its continued

implementation and enforcement, which if not directed to

the President himself, may readily be directed to lesser

subordinate officials under the President, achieving the

same result.

On November 7, 2009, the House of

Representatives passed the Affordable Health Care for

America Act, H.R. 3962, by a 220-215 vote and forwarded

the bill to the Senate for passage. The Senate, casting

aside the House bill, failed to take up debate on it and

decided to ORIGINATE ITS OWN health care reform

bill.

In an effort to circumvent the constitutional

requirement that all revenue-raising bills ORIGINATE

in the House, (see U.S. Const. Art. I, § 7, cl. 1 (A - 44), the

Senate used H.R. 3590, a bill entitled “Service Members

Home Ownership Tax Act of 2009.” H.R. 3590, § 1 (A -

186) as a shell bill. This bill had been introduced in the

House of Representatives by Charles Rangel (D-NY) on

2

September 17, 2009 and passed by the House on October

8, 2009 by a vote of 416-0. This bill’s purpose was to

amend the Internal Revenue Code “to modify the first-

time home buyers credit in the case of members of the

Armed Forces and certain other Federal employees, and

for other purposes.” H.R. 3590, Preamble (A - 186). H.R.

3590 was a very short, noncontroversial measure, had

nothing to do with health care reform and did not

constitute a revenue-raising bill. Its primary purpose was

to provide tax breaks to (, i.e., to reduce the taxes imposed

on,) members of the uniformed services, the Foreign

Service, and the intelligence community. H.R. 3590 did

not impose taxes designed to raise revenue beyond off-

setting the cost of providing the tax breaks.

Harry Reid and the Senate leadership used H.R.

3590 as a ‘shell game’ shell bill for the Senate’s health

care reform measure by completely striking out all of H.R.

3590 after the “enacting clause” and substituting multi-

farious and very lengthy amendments collectively known

as Senate Amendment 2786 — the infamous 2000+ pages.

The revised bill (“the Senate BilJ”), by now entitled the

Patient Protection and Affordable Care Act (““PPACA”) ,

was introduced on the Senate floor on or about November

19, 2009.

On December 21, 2009, the Senate voted 60 to 40 to

cut off debate on the bill. The Administration worked

diligently to garner the 60th vote needed to defeat a

Republican filibuster of obamacare. The President

himself met six times in a nine-day period with Senator

Ben Nelson of Nebraska, the Democratic hold out

concerned with the liberalization of abortion the bill as

drafted would cause. Finally, after the sixth meeting with

the President at the White House to which he had been

summoned, Ben Nelson became the 60*) vote.

3

NO LESS THAN 20 UNITED STATES

SENATORS, whom it is presumed are pretty well

connected in the Senate as to what goes on among

their membership, signed onto a letter to the Chairman of

the Senate Armed Services Committee protesting the

abuse of presidential power in threatening to close the

Strategic Air Command base (Offutt Air Force Base that

employs 10,000 people in Senator Ben Nelson’s state)

unless he came around to the President’s way of thinking

and voted with his fellow Democrats. (See copy of letter

A-192).

In the District Court below, the President’s dep-

osition was noted and interrogatories inquiring into this

abuse of executive power were propounded and served

upon the President with the filing of the initial

Complaint. The President’s response brought back

memories of the nickname given to General Jackson, who

stood his ground during the American Civil War.

In forced session on Christmas Eve, the Senate

‘passed’ obamacare by a vote of 60 to 39, with Senator Ben

Nelson voting for the bill. All Senate Democrats and

Independents voted for obamacare, while all Senate

Republicans (except Senator Jim Bunning, (R-KY), who

did not cast a vote) voted against it. This gargantuan

piece of social legislation had virtually NO bipartisan

support. By contrast, previous major pieces of social leg-

islation — Social Security in 1935 and Medicare in the

1965 — passed by substantial bipartisan margins.

The Christmas Eve passage of obamacare gave

birth to a mistaken belief by this Administration that

they had a ‘permit’ to dynamite the cathedral of American

medicine 200 years in the making, the stones of which

have been painstakingly laid one upon another by hand

over two centuries.

On January 19, 2010, in a special election held in

Massachusetts in which ‘obamacare’ was ground zero,

Scott Brown (R-MA) was elected to the Senate in a

stunning upset, ending the Democrats’ 60-member, fil-

ibuster-proof majority in the Senate. Scott Brown ran on

a promise to vote against obamacare. Since the House

had passed one health care bill and the Senate had

passed its own version which had originated in the

Senate, a joint House-Senate conference committee would

be required to hammer out a compromise bill to be first

resubmitted in the House (Origination Clause com-

pliance) and passed by the House and then forwarded to

the Senate for approval. Scott Brown would now vote

against it, costing the Democrats their filibuster-proof,

60-vote majority.

After the shellacking that the Administration took

in Massachusetts on obamacare, the President switched

his rhetoric to the economy, and it was presumed even by

fellow members of his party who had begun to distance

themselves from obamacare that the health care bill was

dead, at least for the present session of Congress. A

chorus of voices in the Congress said there was a need to

start over with a clean sheet of paper — a truthful and

realistic assessment necessary to obviate a division of the

nation. This was respecting the greater wisdom that “a

house divided cannot stand.”

The current Chief Executive, however, was more

determined than ever to have his way as the people

witnessed his mailed fist clench the House Democratic

leadership into submission in order to ‘bully through’

obamacare while disrespecting, ignoring and defying the

Origination Clause of the Constitution. At the same time,

they amended it with a third bill, the Health Care and

Education Reconciliation Act of 2010, Pub. L. 111-152, 124

Stat. 1029. The House ‘passed’ the Senate Bill on March

21, 2010, by a vote of 219 to 212, with 34 Democrats and

all 178 Republicans voting against it. President

Obama signed the bill on March 23, 2010, knowing full

well that he was signing a bill, the failed compliance of

which with Article I, Section 7 of the Constitution was

exceeded only by his own failed compliance with his

solemn oath of office to “preserve, protect and defend

the Constitution of the United States.” History

teaches that power can become an aphrodisiac causing an

individual to seek greater and greater amounts and to

believe that he and he alone knows what is best for the

people and that his desired ends are nobler than a

Constitution of the people over whom he is now in power

and that those ends, therefore, should not be fettered by a

Constitution.

The Constitution mandates that “all bills for

raising revenue shall originate the House of

Representatives.”

The Senate Bill, as introduced on the Senate floor,

passed by the Senate, ‘rubber-stamped’ by the House, and

signed by the President, contains numerous new taxes,

fees and penalties designed to RAISE REVENUE both

(1) to offset the cost of the Senate Bill’s health care

insurance and other reforms and (2) to reduce the

federal deficit which include:

* New Medicare Taxes. Effective January 1, 2013,

individuals with an adjusted gross income (AGI) of more

than $200,000 a year, and married couples with an AGI of

more than $250,000 a year, will (a) have their Medicare

’art A (hospital insurance) tax rate increased by 0.9

percent, to 2.35 percent, and (b) pay an entirely new tax of

3.8 percent on unearned income (e.g., interest, dividends).

The JCT estimates these new Medicare taxes will bring in

$210 billion between 2013 and 2019. PPACA, § 9015, 124

Stat. 870-72.!

¢ Tax on Expensive Health Insurance. [ffective

January 1, 2018, an excise tax will be levied on insurers of

employer-sponsored health plans that cost more than

$10,200 annually for individuai coverage, or more than

$27,500 annually for family coverage. The tax would be

40% of the cost of any plan that exceeds these dollar

thresholds. The JCT estimates this tax will bring in

around $32 billion in 2018 and 2019. See PPACA, § 9001,

124 Stat. 847-53.

* Fees and Texes Imposed on Health Care

Industries.

¢ Drug manufacturers will pay $27 biilion in new

annual fees (2011 to 2019). PPACA,§ 9008, 124 Stat

859-62.

¢ Health insurers will pay $60.1 billion in new

annual fees (2014 to 2019). PPACA, § 9010, 124 Stat. 865

68.

e Effective January |, 2013, medical device

makers will pay a 2.9% excise tax on the sale of any of

their wares, or a total of $20 billion. PPACA, § 9009,

124 Stat. 862-65.

* Tanning Salon Tax. Effective July 1, 2010, a tax of

10% began to be levied on indoor tanning services. It is

estimated that this tax will net approximately $2.7 billion

between 2010 and 2019. PPACA, § 9017, 124 Stat. 872

73

1 The full text of this 2,700+-page Act may be found online at

http//www.pgpo.gov/fdsys/pky/BILLS-11 Thr3590RNR/pdf/BILLS

11 hr3590ENR. pdf

¢ Tax Penalties Imposed On Employers. Effective

January 1, 2014, a tax penalty of $750 per employee? will

be imposed on employers with over 50 employees who do

not offer health insurance to their full-time workers.

PPACA, §§ 1513, 10106, 124 Stat. 253-256, 906-911.

¢ Tax Penalties Imposed On Individuals. Effective

January 1, 2014, an annual tax penalty of $95, or up to

1% of income, whichever is greater, on individuals who do

not secure health insurance; this will rise to an annual

penalty of $695, or 2.5% of income, by 2016. The $695

figure is an individual limit on the annual penalty;

families have a limit of $2085.00. PPACA, §§ 1501, 10106,

124 Stat. 242-49, 253-256, 906-911.

Before the Senate passed the Senate Bill, the

Congressional Budget Office (CBO) and the JCT, in a

letter to Senate Majority Leader Harry Reid, dated

December 19, 2009, estimated that the Senate Bill “would

yield a net reduction in federal deficits of $132 BILLION

over the 2010-2019 period”.? Before the House passed the

Senate Bill, the CBO and JCT similarly estimated, in a

letter addressed to the Speaker of the House, Nancy

Pelosi, dated March 20, 2010, that the bill, by itself,

“would yield a net reduction in federal deficits of $118

BILLION over the 2010 to 2019 period, of which about

$65 billion would be on-budget”.

After initiating this action by filing their original

Complaint on January 5, 2010, Petitioners moved for

leave to file a Second Amended Complaint on March 18,

2010 (A - 65). In Count III of their proposed Second

2 Increased to a tax penalty of $2000 per employee by the

Reconciliation Act.

3 See letter at http:-/Avww.cbo.gov/ftpdocs/108xx/doc10868/12-19-

Reid_Letter_Managers_Correction_Noted.pdf

4 See letter at

http/Avww.cbo.gov/ftpdocs/1 13xx/doc11379/AmendReconProp. pdf

8

Amended Complaint, Petitioners alleged that, if the

House of Representatives passed the Senate Bill,

“then the House will be passing a revenue raising

bill that ORIGINATED in the Senate and NOT in

the House, in violation” of U.S. Const. Art. I, § 7, cl. 1 (A -

44). Among other relief, Petitioners sought the entry of a

judgment “[dJeclaring the Senate Bill, if passed by the

House of Representatives and/or signed into law by the

President, null and void as passed in violation of” U.S.

Const. Art. I, § 7, cl. 1 and “[e]njoining the enforcement

and implementati»n of any resulting health care reform

bill that is presented by Congress to the President and is

signed by the President” (A - 82).

On July 27, 2010, the District Court, the Honorable

Peter J. Messitte presiding, issued an Order denying

Petitioners’ Motion for Leave to File Second Amended

Complaint as to President Obama (A - 37). In an accom-

panying Memorandum Opinion, Judge Messitte reasoned

that the motion for leave to amend should be denied

“[s]ince any amendment with regard to President Obama

would be futile,” concluding that Count III presented non-

justiciable, political questions and that the relief sought

against the President “is also nonredressable” (A - 35).

On August 10, 2010, while leaving the case open as

to Defendant Barack Hussein Obama, Petitioners filed a

Notice of Dismissal of Proposed Second Amended

Complaint as to the remaining proposed defendants,

Nancy Pelosi, Steny Hoyer, and James E. Clyburn, under

Rule 41(a)(1) of the Federal Rules of Civil Procedure (A -

191). The District Court, by Order filed August 11, 2010,

approved the Notice of Dismissal of Proposed Second

Amended Complaint and directed the Clerk of Court to

close the case (A - 41).

After giving their Notice of Appeal (A - 135),

9

Petitioners moved before the Fourth Circuit for a

temporary injunction pending resolution of the

appeal and further moved for expedited consideration of

the appeal (A - 137). Respondent thereafter made a cross-

motion to dismiss the appeal “for lack of Article III

standing and for failure to present a substantial federal

question.” (A - 155). On August 30, 2010, the Fourth

Circuit denied Petitioners’ motion for a temporary

injunction (A - 5). On September 8, 2010, the Fourth

Circuit denied Petitioners’ motion for expedited appeal,

denied Petitioners’ motion for reconsideration, and

granted the Respondent’s motion to dismiss the appeal (A

- 6). On September 8, 2010, the Fourth Circuit entered its

Judgment dismissing the appeal (A - 7).

REASONS WHY THE PETITION SHOULD BE

GRANTED

I. The Fourth Circuit Decided A Novel And

Important Question of Federal Law

Regarding Respect for and

Compliance With The Origination Clause

That Should Be Settled By This Court.

In denying Petitioners’ motion for a temporary

injunction pending appeal and dismissing the appeal

itself for failure to present a substantial federal question,

the Fourth Circuit rejected Petitioners’ Origination

Clause challenge to the PPACA. The appeals court

thereby decided a novel and important question of federal

law regarding respect for and compliance with the

Origination Clause. Specifically, was the Origination

Clause violated where the Senate used a non-

10

germane, NON-REVENUE-RAISING House bill as a

vehicle to pass a revenue-raising Senate measure

in an effort to circumvent the Origination Clause’s

requirement that all bills for the raising of revenue

ORIGINATE in the House of Representatives? To

paraphrase Justice Douglas, “[w]Jhat may not be done

directly may not be done indirectly lest the

{(Origination] Clause become a mockery.” Cf School

District of Abington Twp. v. Schempp, 374 U.S. 203, 230

(1963) (Douglas, J., concurring) (Establishment Clause)

The Origination Clause was part of the “Great

Compromise” of 1787 and should be respected and

enforced and not be reduced to a meaningless admonition,

easily circumvented when it is deemed by those currently

in power in the nation that their ends are more noble

than the Constitution.

The larger conflicts at the Constitutional

Convention of 1787 had perhaps hinged less on the

question of federal versus state power than on how

federal representation was to be apportioned among the

states. The delegates solved this baffling issue by

deciding that all states would enjoy equal representation

in the Senate (a sop to the small states) while repre-

sentation in the House of Representatives would be based

on each state’s population (a sop to the large states). This

proposal was put forward on July 16, 1787, by Roger

Sherman of Connecticut and others and came to be

known as the “Connecticut Compromise” or the “Great

Compromise.” This broke the deadlock, but the

Origination Clause was placed in the Constitution to be

sure that “all Bills for raising Revenue shall originate in

the House of Representatives.” In order that the people

might retain control over the ‘purse strings’, revenue-

raising measures were to originate in the body

11

apportioned by population.

The limitation “expresses a preference for keeping

the taxing power as close as possible to those subject to

it...”5 Baines, 152 N.H. at 135, 876 A.2d at 779 (quoting

Singer, supra, at 629). It reflects “a belief that that the

branch of government closest to the people ‘will be more

watchful and cautious in the imposition of taxes’ and thus

should be the source of those bills.” Bobo v. Kulongoskt,

338 Ore. 111, 107 P.3d 18, 23 (2005) (quoting Joseph Story,

Commentaries on the Constitution of the United States

341 (1833)).

To permit the Senate Leadership, aided and

abetted by the President and the House leadership,

to trample underfoot at will the Origination Clause’s

mandate that all revenue- raising bills originate in the

House would be to substitute an ‘ends justifies the means’

standard for the higher Constitutional Standard, and the

felling of the Origination Clause, like the felling of a giant

sequoia in the national forest would be the ‘origination’

itself of the undoing of our Constitution, clause by clause

(tree by tree) as other clauses (sequoias in the ‘National

Forest Preserve’ of our Constitution) get in the way of this

or future administrations, and they similarly tunnel

through the sequoia (the clause) causing it to die and be

no more.®

A. The Senate Bill is One for Raising Revenue.

5 Not only is the House the larger and more representative branch of

Congress, all of its members must stand for re-election every two

years, not just one-third as is the case with the Senate. U.S. Const.

Art. I, § 2, cl. 1 & Art. I, § 3, cl. 2.

6 The analogy is used because one is reminded of a tunnel cut

through the base of a giant sequoia for cars to pass through as an

advertising gimmick to promote tourism years ago. The tree subse-

quently died.

12

ns

The Origination Clause mandates that “[A]LL

BILLS FOR RAISING REVENUE SHALL ORGINATE

IN THE HOUSE OF REPRESENTATIVES; BUT THE

SENATE MAY PROPOSE OR CONCUR WITH

AMENDMENTS AS ON OTHER BILLS.” Const., Art. I, §

7, cl. 1 (emphasis added); see U.S. v. Munoz-Flores, 495

US. 385, 387 (1990). The Senate Bill originated in the

Senate and is one “for raising Revenue.” It raises

BILLIONS OF DOLLARS OF REVENUE by way of

new taxes, fees and penalties, including, but not limited

to, higher Medicare payroll taxes on top earners; a tax on

high end, “Cadillac” health insurance plans; the

imposition of fees on health insurance companies and

drug manufacturers; the imposition of an excise tax on

medical device manufacturers; levying a tax on tanning

salons; and the imposition of tax penalties on corporations

and individuals.

More importantly, the Senate Bill imposes these

new taxes, fees and penalties, not just for the purpose of

covering the cost of the health insurance reforms

established by the Act, but also in order to achieve sig-

nificant federal deficit reduction, i.e., to raise

revenue to meet the overall obligations of the federal

Government.

Congress contemplated that the taxes

imposed by the PPACA will generate a “substantial

excess” of revenue beyond that needed to defray

the cost of the health care reform programs

established by the Act. Specifically, Congress

anticipated that the taxes imposed by the Act will result

in an excess of over $100 BILLION in revenue from

2010 to 2019, which excess revenue would be used to

significantly reduce the federal deficit. In short, the

PPACA has the purpose, not only to finance health care

13

reform, but also “to raise revenue to be applied in meeting

the expenses or obligations of the Government." See Twin

City Natl Bank Nebeker, 167 U.S. 190 at 203.

The PPACA is a “Billf] for raising Revenue” that

was required to originate in the House of

Representatives by the Origination Clause. After Senator

Brown’s election in Massachusetts that cost the

Administration its filibuster-proof majority in the Senate,

the President was forestalled from taking the next step to

achieve constitutional compliance in the passage of his

obamacare, namely bringing together a joint House-

Senate conference committee to hammer out a com-

promise bill that could pass both houses. The people

were speaking out against obamacare, and Massachusetts

became the first STATE to speak. The Administration

panicked. The President summonsed Congressional

leadership to the White House, jockeying in and out of his

cabinet room, where he met with them attempting a com-

promise they could not reach themselves (having

appointed himself the ‘chief legislator’). That having

failed, like a king of old summonsing Parliament to the

palace under palace guard, he brought Parliament to the

palace gatehouse (Blair House) where he lectured them in

the public eye. This, too, having failed, the Administration

and the House leadership investigated numerous and

devious ways around the constitutional mandate of the

Origination Clause and sent up numerous trial balloons

in the press. Finally, they decided to trample Article I,

Section 7 underfoot, running roughshod over the yellow

flags that showered down like confetti on the field. The

President, grasping his coveted ball (obamacare) with a

mailed fist (falsely assuming the ball was still in play) ran

like a bull with its head down across the finish line in the

House with a revenue raising bill that originated in the

14

eee

Senate lock, stock and barrel. He had caught the ball on

the wrong side of the constitutional foul line.

Thomas Jefferson’s prophetic words were thereby

made manifest in our time:

“I said to [President Washington] that if the

equilibrium of the three great bodies,

Legislative, Executive and Judiciary, could be

preserved, if the Legislature could be kept

independent, I should never fear the result of

such a government; but that J could not but

be uneasy when I saw that the Executive had

swallowed up the Legislative branch.”

Thomas Jefferson: The Anas, 1792, ME 1:318 (emphasis

added).

B. The PPACA Originated in the Senate.

The Senate leadership attempted to circumvent the

Origination Clause’s requirement that a revenue-raising

bill originate in the House of Representatives by taking

up a House bill, H.R. 3590, deleting its text, and sub-

stituting by way of a Manager’s Amendment the text of

the PPACA (2,000+ pages worth). In doing so, the Senate

apparently relied on this Court’s prior decisions in Flint v.

Stone Tracy Co., 220 U.S. 107 (1911) and Rainey v. US.,

232 U.S. 310 (1914).

In Flint, the House passed a general bill for the col-

lection of revenue containing an inheritance tax. The

Senate deleted the inheritance tax and substituted a

corporate tax, and the act was then passed as amended.

Rejecting an Origination Clause challenge to the Senate’s

action, the Supreme Court reasoned that “[t]he bill having

properly originated in the House, we perceive no reason in

15

the constitutional provision relied upon why it may not be

amended in the Senate in the manner which it was in this

case.” 220 U.S. at 143. The Court further reasoned that

“(t]he amendment was germane to the subject-matter of

the bill, and not beyond the power of the Senate to

propose.” Id. In Rainey, the Supreme Court, per Chief

Justice White, found unobjectionable the Senate’s addition

of a revenue amendment to a House-originated bill for

raising revenue. 232 US. at 317.

This case is readily distinguishable from Flint and

Rainey. In those cases, the House originated a revenue-

raising bill, the Senate then exercised its constitutional

prerogative to amend the bill, see U.S. Const. Art. I, § 7, cl.

1 (“[T]he Senate may propose or concur with Amendments

as on other Bills”), and the amended bill was enacted. In

this case, by contrast, the House originated a non-

revenue raising bill, namely the Service Members

Home Ownership Tax Act of 2009; the Senate sub-

stituted a non-germane, revenue-raising bill, namely

the PPACA; and the Senate bill was enacted. The Service

Members Home Ownership Tax Act of 2009 is not a bill

for raising revenue, since it enacts a program of financial

assistance in the form of tax relief for service members

and incidentally raises revenue to pay for that program.

The PPACA is a revenue raising bill, since the

taxes imposed by that bill were purposely designed to

generate a substantial excess of revenue over and above

that needed to finance the health care reform programs

established by that bill, specifically an excess of over $100

billion over a ten-year period, to be used for fed2ral deficit

reduction purposes. Furthermore, the PPACA is not at all

germane to the subject matter of the House bill, which did

not concern in any sense of the word either ‘health care

reform’ or federal deficit reduction.

16

By substituting the PPACA for the Service

Members Home Ownership Act of 2009, the Senate did

not simply amend a House-originated revenue-raising bill

as in Flint and Rainey, but itself improperly originated

a revenue-raising bill in violation of the

Origination Clause. This constitutional violation was

thereafter rendered complete by the actions of the

House in passing, and the President in signing, the

Senate-originated revenue-raising bill.

C. The Claim Is Justiciable And Redressable.

As this Court held in .S. v. Munoz-Flores, 495 U.S.

385 (1990), an Origination Clause “has none of the charac-

teristics that Baker v. Carr [, 369 U.S. 186 (1962)]

identified as essential to a finding that a case raises a

political question. Jt is therefore justiciable.” 495 U.S. at

396 (emphasis added). Judge Messitte’s ruling to the

contrary fatally conflicts with this Court’s holding in

Munoz-Flores.

As for redressability, Judge Messitte failed to

consider that “numerous subordinate executive officials

engage|(] in the continued operation and enforcement of

[the challenged Obamacare legislation’s}] provisions.” See

Made in the USA Found. v. U.S., 242 F.3d 1300, 1310

(11th Cir), cert. denied, 534 U.S. 1039 (2001). Thus, “even

short of directly ordering the President to terminate

[implementation and enforcement of the PPACA], [the

ability to issue] a judicial order instructing the sub-

ordinate executive officials to cease their compliance with

its provisions [will] suffice for standing purposes.” See id.

at 1310-1311. That the proposed Second Amended

Complaint does not “identify subordinate [executive]

officials who could be enjoined, as well as specific pro-

17

visions [of the PPACA] that such officials should cease to

implement in order to redress [the Petitioners’] injuries . .

. does not preclude a finding of redressability.” Id. at 1311

n. 25. This Court has held that a court has power under

the All Writs Act, 28 U.S.C. § 1651(a), to issue commands

that apply to “persons who, though not parties to the

original action or engaged in wrongdoing, are in a position

to frustrate the implementation of a court order or the

proper administration of justice.” U.S. v. New York Tel.

Co., 434 U.S. 159, 172-174 (1977); see Made in the USA,

242 F.3d at 1311 n. 25.

In short, the redressability requirement for

standing is fully satisfied by a federal court's ability to

issue injunctive relief against subordinate executive

officials to halt the enforcement and implementation of

the PPACA.

D. The Claim Presents A Substantial Federal

Question.

This Court has held that a federal question is

insubstantial only if “it is obviously without merit or its

unsoundness so clearly results from the previous

decisions of this court as to foreclose the subject and leave

no room for the inference that the question sought to be

raised can be the subject of controversy.” Ex Parte

Poresky, 290 U.S. 30, 32 (1933). Claims are constitu-

tionally insubstantial “only if the prior decisions

inescapably render the claims frivolous; previous

decisions that merely render claims of doubtful or ques-

tionable merit do not render them insubstantial|[.}”

Goosby v. Osser, 409 U.S. 512, 518 (1973). Thus, “[a] case

should be dismissed for want of a substantial federal

question only when the federal issue is (1) wholly insub-

18

stantial or obviously frivolous, (2) foreclosed by prior cases

which have settled the issue one way or another, or (3) so

patently without merit as to require no meaningful con-

sideration.” Nicodemus v. Union Pac. Corp., 440 F.3d

1227, 1236 (10th Cir. 2006) (quoting Wiley v. NCAA, 612

F.2d 473, 477 (10th Cir. 1979), cert. denied, 446 U.S. 943

(1980)).

EK. Summary: The Origination Clause Should Be

Given “Teeth”.

The Court should grant the Petition to prevent the

President from abusing his leadership to render

insignificant the Constitution’s Origination Clause by the

use of an irrelevant non-revenue-raising House bill as a

vehicle for passing a 100 billion dollar revenue-raising

measure which originated solely in the Senate.

Review by this Court is necessary to give the

Origination Clause “teeth”, id. (“If the origination clause is

to have any vitality, if... it is truly to ‘safeguard liberty, . .

. it must have teeth|.]”) (quoting Munoz-Flores, 495 U.S. at

395), and thereby restore the people’s grip on the Nation’s

purse strings.

The Court should also grant the Petition to

reaffirm that Origination Clause challenges are jus-

ticiable and to clarify that such a claim brought against

the President is redressable by issuing appropriate

injunctive relief against subordinate executive officials

>. pursuant to the-All Writs Act, 28 U.S.C. § 1651(a).

19

The Court should enter up a temporary injunction

enjoining any further implementation or enforcement of

PPACA pending final adjudication so as to forestall

further implementation of this complex and mammoth

law, any subsequent ‘reverse implementation’ of which

this President would assuredly blame on the court finding

some way to say that the Court should have acted sooner.

The Court may wish to use the instant case as the

‘vehicle’ to enter up injunctive relief, as TIME IS OF

THE ESSENCE, and later consolidate argument in this

case with other cases working their way to the Court. It

is respectfully proffered that it would be better to ‘stop the

music’ during the overture, while the people are still

taking their seats, than to allow something lacking

bipartisan harmony to begin with cymbals clanging like a

bull in a china shop. The intended symphony needs to be

newly scored on a clean sheet of paper by the new

Congress.

The instant case is the first to have been filed

because it is predicated upon the manner in which the

President transgressed constitutional mandate in order to

procure passage of his law. The cases of the state

Attorney Generals only beginning now to work their way

to the Court are predicated upon an ordinary challenge to

the constitutionality of a law once passed and, therefore,

could not be and were not filed until after the bill was

signed into law by the President. Further, they seem to be

based primarily upon Ninth and Tenth Amendment

arguments whereas the Origination Clause argument of

the instant case is based upon this current Chief

Executive’s willful transgression of the Constitution’s

Article I, Section 7 and his usurpation of the powers of the

legislature to procure his own will.

The Court should grant the Petition to reverse, as

20

erroneous and/or an abuse of discretion, the Fourth

Circuit’s dismissal of Petitioners’ appeal for failure to

present a substantial federal question and remand the

case to the appeals court for further proceedings, after

entry of the Court’s own temporary injunction

Il. The Fourth Circuit Decided Novel And

Important Questions Of Federal Law

Regarding The Standing Of Taxpayers,

Physicians, And Pre-Med College Graduates

To Challenge The PPACA.

To the extent the Fourth Circuit dismissed

Petitioners’ appeal for lack of Article III standing, the

appeals court decided important federal questions of law

regarding the standing of federal taxpayers, doctors, and

pre-med college graduates to challenge the PPACA as

violating the Origination Clause, questions that have not

been but should be resolved by the Court.

Jennifer Boyer, a bright young graduate of the

University of Kentucky, admitted to the medical school by

the same name, put her plans on hold while awaiting

outcome of the health care debate in the Congress.

Following passage of obamacare as promulgated, she has

suspended her plans to enter medical school pending the

outcome of constitutional challenges to the law. (A-52, A-

106) affidavit of Jennifer Boyer which was originally

appended to Plaintiffs’ Proposed Second Amended

Complaint). Her story is consonant with the story of

innumerable others — the brightest and best who formerly

chose medicine as a career.

To establish the “irreducible constitutional

minimum of standing,” Petitioners “must have suffered an

‘injury in fact’ — an invasion of a legally-protected interest

21

which is (a) concrete and particularized’ ... and (b) actual

or imminent, not conjectural or hypothetical.” Lujan, 504

US. at 560-561. The alleged injury also must be traceable

to the actions of which the Petitioners complain, and it

must be “likely” that a favorable decision would redress it.

Id.

A. Petitioner-Physicians Have Standing To

Protect The Patient-Physician Relationship

And Avoid Deficient Care For Their Patients.

Petitioners are well-known physicians (both

nationally and locally). Each works in a professional

setting and deals with Health Care decisions on a niinute-

by-minute basis. The Health Care legislation proposed by

Respondent will damage Petitioners’ medical profession

by adversely altering the physician-patient relationship.

If the manner of passage of this law is upheld,

Petitioners will be exposed to the blight of socialized

medicine. The inherent risk of being a party to socialized

medicine programs will eliminate the sacred binding of

dedicated physician and sick patient. Eliminated will be

the two ‘inalienable’ rights inherent in medical care since

the time of Hippocrates: 1) the right of the patient to

choose the doctor and 2) the right of the doctor to

choose the treatment for the patient.

There will be a lack of incentives to go into

medicine and the brightest and the best of American

youth that formerly did so will choose a different career.

The increase in government directives and interventions

will increase the number of doctor retirees. Patient

7 An injury is “particularized” if it affects the plaintiff in “a personal

and individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992).

22

medical decisions will become impersonal and will be fre-

quently made by non-medical personnel. Petitioners will

be further injured through the commandeering of their

occupation by civil technocrats who will carry out the

federal policy set forth by Respondents and depriving the

Petitioners of their power to make the determination as to

what type of treatment is best for their patients.

Petitioners as protectors of the medical profession have a

right to see that these injuries will not occur. (A-46, A-87,

A-92) affidavit of Dr. Richard P. Delaney).

Standing is not to be denied simply because many

people suffer the same injury. As the Court explained in

FEC v. Akins, 524 US., 11, 24 (1998), injury-in-fact may be

found although the asserted harm is “widely shared” if the

harm is sufficiently concrete and particularized. Here,

there is no question that Petitioners allege a discrete,

individual risk of personal harm from the passing of this

particular piece of Health Care legislation and base their

claim of standing on more than a generalized concern that

the Respondent obeys the law, i.e., separation of powers

(wall of separation between executive and legislative

y

branches of government) and follow the Constitution

(Article I, Section 7).

The practice of medicine will ve altered.

Physicians are cautioned by the President’s health care

advisor, Dr. Ezekiel Emmanuel to accept rather than

resist the changes in the practice of medicine. Dr.

Kmmanuel’s writings could give one the impression that

he may have had a substantial role in generating the

PPACA.

In summary, Petitioner-Physicians have standing

to challenge the constitutionality of the PPACA because

that act will (1) irreparably impair the doctor-patient rela-

tionship between these physicians and their patients, and

23

(2) force these physicians to practice medicine in a

deficient manner.

The doctor-patient relationship has been described

as “a unique fiduciary-like relationship that exists

between doctor and patient.” See Carhart v. Stenberg, 972

F. Supp. 507, 521 (D. Neb. 1997); see also Corcoran v.

United Healthcare, Inc., 965 F.2d 1321, 1338 (9th Cir.)

(“courts regularly view doctors and their patients as

standing in a fiduciary relationship”), cert. denied, 506

US. 1033 (1992). The relationship is based on the

“personal trust” that the patient has in his or her doctor.

This element of “trust ... is essential to the doctor-

patient relationship.” Washington v. Glucksberg, 521 U.S.

702, 731 (1997). It is this “personal trust” that encourages

the patient to candidly and fully inform and confide in the

doctor, so that he or she can identify and treat the

patient’s disease or condition. See Trammel v. United

States, 445 U.S. 40, 51 (1980) (the doctor-patient privilege

reflects “the imperative need for confidence and trust”

inherent in the doctor-patient relationship and recognizes

that “a physician must know all that a patient can

articulate in order to identify and to treat disease;

barriers to full disclosure would impair diagnosis and

treatment”).

The Act “encourages the use of new structures such

as [patient-centered] medical homes,” and “discourages

traditional independent forms of practice,” such as those

engaged in by petitioner-physicians, see Jane M. Orient,

M.D.,““Obamacare’: What Is in It,” 15 Journal of Am.

Phys. & Surgeons 87, 88 (Fall 2010), thereby undermining

the personal nature of the doctor-patient relationship and

hence the confidence and trust that the patient reposes in

the doctor.

That the PPACA is designed and intended to

24

transform the provision of medical services to a more

impersonal, aggregated system, where patients will be

dealing with physicians who are employees of hospitals or

members of large organizations, instead of independent

medical practitioners, can be seen from a recent article

authored by Ezekiel J. Emanuel, MD, Special Advisor on

Health Policy, Office of Management and Budget, and

Nancy Ann M. DeParle, JD, Director of the White House

Office of Health Reform, together with Robert Kocher,

MD. See R. Kocher, E. Emanuel, and N. DeParle, “The

Affordable Care Act and the Future of Clinical Medicine,”

Annals of Internal Medicine (Aug. 23, 2010),

http://www.annals.org/content/early/2010/08/ 23/0003-

4819-153-8-201010190-00274.1.full.

In this article, the authors candidly state that

To realize the full benefits of the Affordable Care

Act, physicians will need to embrace rather than

resist change. The economic forces put in motion

by the Act are likely to lead to vertical organization

of providers and accelerate physician employment

by hospitals and aggregation into larger physician

groups.

Id., Abstract (emphasis added); see also id., Full Text

(“These reforms will unleash forces that favor integration

across the continuum of care. ... Consequently, the

health care system will evolve into 1 of 2 forms: organized

around hospitals or organized around physician groups.”).

In short, individual medical practitioners, such as

the physician-petitioners, will either be driven into

retirement or out of business, or they will be forced to

“organize themselves into increasing[ly] larger groups--

patient-centered medical home practices and accountable

care organizations,” Kocher, Emanuel, & DeParle, Full

25

Text, thereby umpersonalizing and irreparably damaging

and undermining the doctor-patient relationship between

petitioners and their patients. Again, this is by design.

That sacred relationship between doctor and

patient, that unique and personal expression of our

liberty — and we are talking about liberty here — stands

now in peril. Our Constitution has been hammered out of

shape to pass a feared and hated law that will forever

destroy what it means to be a doctor and what it means to

be a patient. While Congress was in summer recess, the

President, fully aware of the unpopularity of his new law,

appointed a czar to be the dominating influence directing

American Medicine. Dr. Donald Berwick is a man whose

opinions the President could not trust to stand the light of

day. That is to say, he could not stand the light of

Congressional review of his appointment.

Dr. Donald Berwick openly lauds and favors the

United Kingdom’s socialized system of medicine. It is a

system that has famously and expensively failed the sick

of England. He has not our liberty in mind when he

states: “I cannot believe that the individual health care

consumer [that is we, the patient] can enforce through

choice [i.e., our liberty] the proper configuration of ...

health care. That’s for leaders to do” (meaning, of course,

himself, Emanuel, Obama, etc.)® Again, he disdains

liberty in demanding politically motivated rationing of

services and medications. “You cap your health care

budget and you make the political and economic choices

you need ..."? Read: “The government will cap...,and the

government will make choices.”

8 See article entitled “Berwick: Bigger Than Kagan” by Daniel

Henninger, July 15, 2010, Wall Street Journal;

http-//online.wsj.com/article/SB10001424052748703792704575367020

548324914. html

9 Ibid.

Quoting the President’s back-door appointment of a

man who mirrors his own views on how the sick should be

cared for — or neglected — could go on but the point is

made. His views are known. He requires shielding from

official scrutiny of senatorial review. Mr. Obama, in his

haste to establish big government, is unfairly attacking

the profession that Physician-Petitioners have lived and

loved. That is a disgrace because American Medicine has

worked well for the sick in our land.

Young, bright and committed future doctors see no

attraction to socialized medicine. The prospect of what

Mr. Obama means health care to be is so utterly alien to

their calling that they will choose other paths, thus

denying our society of the brightest and the best.

Obamacare is not concerned with the sick nor with their

doctors who might have attended them. It is caught up

with denying needed services and capping medical

budgets while driving the nation’s deficit to

unprecedented trillions.

The physician assumes a profound responsibility in

entering into that pact wherein the patient places such

trust in his hands. It is a matter of moral concern how

much of that responsibility the doctor may delegate to a

third party, be it an insurance company or a politician.

With this political takeover of the means to treat

the halt and the lame; this shortcut to the concentration

of political POWER in our land, we seem to see

assaulting the cradle of liberty a venomous snake. The

viper has a name: Its name is POWER.

POWER does not come alone, for his twin,

OPPRESSION, is soon at his side. Call to mind the

means of passage of this dreadful law; the midnight

Christmas Even session; the locked doors; the bullied

legislators; the unreadable and unread twenty-seven

27

hundred pages and the trampling of our Constitution.

Remember, too, that not the slightest part of it involved a

bipartisan vote. LIBERTY SHOULD BE OF NOBLER

STUFF.

Dr. Donald Berwick, the newly appointed

Administrator of the Center for Medicare & Medicaid

Services (CMS), curiously chooses to change the very

language (and language and words are always important,

being the symbols by which we dissect reality) of medical

care by substituting for the heretofore used word “Patient”

his preferred term “health care consumer” and sub-

stituting for the heretofore used word “Doctor” his

preferred word “health care provider”. As “consumers”

we know what we often hear when we go to the store to

purchase a product.

Dr. Berwick reveals in a book co-authored by him

in 1996, that he regards the doctor-patient relationship as

obsolete and dispensable:

“Health care has become a true industry, with

numerous loci of authority well beyond the doctor’s

office. The care of the patient is increasingly

understood to depend on the precise functioning of

a complicated organization. Though the physician

still acts as the patient’s advocate, practitioners are

more and more economically integrated into the

structure of heaith care, either as employees, as

members of physician-hospital organizations, or as

participants in managed care plans. In many ways,

the relationship of the patient to the doctor is of less

importance than is the role of the patient as

consumer in a health care system... . /T/raditional

medical ethics, based on the doctor-patient dyad,

must be reformulated to fit the new mold of the

delivery of health care. The roles of physician and

28

their patients change with the changes in structure

and financing.”

T. Brennan & D. Berwick, New Rules: Regulation,

Markets, and the Quality of American Health Care, pp. 6-7

(Jossey Bass 1995) (emphasis added).

In addition to impersonalizing and thereby

undermining the doctor-patient relationship by reducing

the trust and confidence that a patient has in his or her

doctor, the PPACA further intrudes into that relationship

by “MAKIING] STATUTORY CHANGES THAT

COULD CHALLENGE THE AUTONOMY OF

PHYSICIANS TO TREAT PATIENTS AS THEY

THINK BEST.” C. DiGiovanni, M.D. and R. Moffitt, Ph.

D., “How Obamacare Empowers the Medicare

Bureaucracy: What Seniors and Their Doctors Should

Know,” (The Heritage Found. Aug. 24, 2010),

http://www.heritage.org/

research/reports/2010/08/how-obamacare-empowers-the-

medicare-bureaucracy-what-seniors-and-their-doctors-

should-know. For example, § 6301 of the PPACA creates a

Patient-Centered Outcomes Research Institute that will

study the comparative effectiveness of medical and

surgical treatments. PPACA, § 6301(a) [Sec. 1181], 124

Stat. 727-738. Section 6301 further authorizes the

Secretary of HHS to use the findings of this comparative

effectiveness research in determining coverage and

physician reimbursement. PPACA, § 6301(c) [Sec.

1182(c)(2) & (dX 2) Ai), 124 Stat. 740-741. This will in

turn coerce physicians into providing standardized

patient care instead of allowing doctors to

prescribe what they think is best for each

INDIVIDUAL patient. See DiGiovanni & Moffitt

(“Doctors will be coerced into standardizing

29

patient care.”). By coercing a doctor into prescribing

treatment and care that he does not think is best for each

individual patient, the PPACA threatens to “impinge

upon the doctor-patient relationship” in violation

of the First Amendment. See Rust v. Sullivan, 500 U.S.

173, 200 (1991).

Aside from harming the doctor-patient rela-

tionship, the PPACA, once it is fully implemented, will

prevent Petitioners and other physicians from practicing

medicine in a safe and effective manner, i.e., it will force

them to practice medicine “deficiently,” by requiring them

to subject their patients to increased medical risk -- by, for

example, subjecting their patients to long waiting periods

for treatment and care due to a shortage of doctors, and

by regulating and restricting the kinds of treatments and

remedies that a doctor may administer and prescribe to

his or her patients -- thereby giving petitioner physicians

“a strong personal stake in the argument.” See Carhart v.

Stenberg, 972 F. Supp. at 520-521.

Furthermore, according to a survey of 1,195

physicians conducted in January 2010, by a national

physician search firm, Medicus, nearly one-third of

these physicians indicated that they will want to

leave medical practice after health reform is

implemented.!° (An injunction by this Court will

forestall this. It is hard to get doctors back once they have

left.) Moreover, of the 25 percent of respondents who were

primary care physicians (defined as internal medicine

and family medicine), 46 percent indicated that they

would leave medicine -- or try to leave medicine -- as a

10 Andrea Santiago, “The Medicus Firm Physician Survey: Health

Reform May Lead to Significant Reduction in Physician Workforce,”

MEDICUS FIRM, Jan. 2010,

http:/Awww.themedicusfirm.com/pages/medicus-media-survey-reveals-

impact-health-reform.

30

result of health reform.!!

The above described harms to the doctor-patient

relationship and the quality of care that can be provided

to patients are both concrete and particularized, as they

would directly affect each of the petitioner physicians in

their practice of medicine, and would implicate interests

that are not common to the entire public. As these harms

are also fairly traceable to the enactment of the PPACA

and would be redressed by its invalidation, the petitioner-

physicians have standing to challenge the validity of the

PPACA under the Origination Clause.

B. The Proposed Additional Plaintiff, A Pre-

Med Graduate, Has Standing Where

Obamacare Has Caused Her to No Longer

Care About Her Dream of Becoming a

Physician, She Having Put Her Plans on Hold.

The proposed additional plaintiff, Jennifer Boyer, a

pre-med college graduate, had plans to attend medical

school and become a doctor, but, although she had

received an offer of admittance to medical school in the

spring of 2009, she deferred acceptance and put her plans

on hold due to the introduction, consideration and passage

of the PPACA, which she views as foreclosing her desired

career path as an autonomous, independent medical prac-

titioner. Unless the PPACA is invalidated or repealed, it

is highly unlikely that she will ever become a doctor, as

she has no desire to become either “a name on a list of

providers” of “allowed services on government-funded

health insurance plans” or a “subordinate [, i.e., an

employee]” (A-52, A-106). Thus, Ms. Boyer has standing,

as she has a direct stake in the outcome of this case,

11 Id.

31

which will determine whether or not she will pursue a

career as a doctor. The harm to her desired career path is

concrete and particularized, is fairly traceable to the

PPACA, and can be fully remedied by the invalidation of

that legislation, causing Congress to start over with a

blank sheet of paper, seeking this time bipartisan

agreement after the mid-term elections.

C. Petitioners Have Taxpayer Standing Under Flast

v. Cohen.

The allegations of the proposed Second Amended

Complaint, as well as affidavits filed with the Fourth

Circuit, establish that Petitioners are federal taxpayers

who will be subject to at least some of the new taxes

levied by the PPACA (A-46, A-49, A-52). In addition, as

federal taxpayers, Petitioners will be subject to any

additional federal taxes that will be needed in the not

unlikely event that the PPACA leads to massive

additional deficits.!2 Petitioners, moreover, have a legally

cognizable injury under the test for federal taxpayer

standing set forth in Flast v. Cohen, 392 U.S. 83 (1968).

The PPACA levies billions of dollars in additional taxes

and then appropriates this tax revenue for the purpose of

financing health care reform programs and to reduce the

federal deficit. The legislation, once fully implemented,

will likely increase the amount of federal taxes that each

12 It has been estimated that the PPACA will increase deficits by

approximately half a trillion dollars. Shawn Tully, “Health care:

Going from Broken to Broke,” Fortune, 03/12/2010,

http://money.cnn.com/2010/03/12/news/economy/debt_health_care. fort

une/index.htm (estimating that the PPACA will increase deficits by

$488 billion); Douglas Holtz-Eakin, Opinion, “The Real Arithmetic of

Health Reform,” N.Y. Times, 03/20/2010, http//www.nytimes.com/

2010/03/2 V/opinion/2 lholtz-eakin. html (former CBO Director

estimates PPACA will increase deficits by $562 billion).

32

Petitioner will be required to pay in future years. Second,

Petitioners can demonstrate a nexus between their

taxpayer status and the claimed constitutional

infringement, i.e., the violation of the Origination Clause

of Article I, Section 7, since the purpose of the Origination

Clause was to act as a “specific constitutional limitation”

or check on Congress’ power to tax and spend by ensuring

that any revenue-raising bill originate in the more repre

sentative body of Congress, namely the House of

Representatives, rather than in the Senate.

D. Summary

The Court should therefore grant certiorari to

resolve the novel and important questions involved and

enter up an order temporarily enjoining further

enforcement or implementation of the PPACA pending

final adjudication in this Court.

The Court should reverse the Fourth Circuit’s

dismissal of Petitioners’ appeal on the grounds of lack of

Article II] standing, and either address the merits of

Petitioner’s Origination Clause challenge or remand to

the Fourth Circuit for further proceedings.

CONCLUSION

In view of the arguments made and authorities

cited above, Petitioners respectfully request that the

Court grant the Petition and issue a writ of certiorari to

the Fourth Circuit Court of Appeals and enter up a

temporary and/or permanent injunction against the

continued implementation and enforcement of the

PPACA, and either (a) reverse the judgment of the lower

courts and remand with instructions that the District

33

Court grant Plaintiff-Petitioners’ motion for leave to file

second amended complaint and/or (b) reverse the Fourth

Circuit's judgment dismissing the Petitioners appeal and

remand the matter to the Fourth Circuit for furthe:

proceedings

Audefph Wartns Fabra y

Rudolph Martin Palmer, Jr

Attorney for Petitioner

JA