Tuesday, May 6, 2014

Sissel's Challenge To ObamaCare

Two recent commentaries about Matt Sissel's legal challenge to ObamaCare.

The first comes from David Catron, "Iraq Vet Continues Battle Against Obamacare" (American Spectator, 5/5/2014).

Catron explains the core issue as follows:
Sissel v. HHS is the only remaining lawsuit that has any chance of actually killing Obamacare. Neither the Hobby Lobby challenge to the egregious HHS contraception mandate nor the various lawsuits challenging the IRS decision to funnel tax credits and subsidies through ineligible federal insurance exchanges have this potential. Even if the government loses all of those cases, the much-despised “reform” law will continue to bedevil us. On the other hand, if Matt Sissel prevails against the administration’s lawyers, Obamacare is history.

Sissel’s challenge to Obamacare is based on the Constitution’s origination clause, which stipulates that all tax laws must be initiated by the House of Representatives. In June of 2012 the Supreme Court ruled that the health care law’s most conspicuous provision, the individual mandate, was a tax. Pursuant to the Court’s ruling, the Pacific Legal Foundation (PLF), which represents Sissel, filed a cause of action based on the well-documented fact that the “Affordable Care Act” originated not in the House but in the U.S. Senate.

This was accomplished by a devious series of unconstitutional procedural gimmicks concocted by Harry Reid, Nancy Pelosi, and the White House. The Democrat-controlled Senate took a piece of unrelated legislation passed by the House, the “Service Members Home Ownership Act of 2009,” removed every word from the bill, and filled the empty shell with the health care legislation that was eventually passed by Congress and which its authors endowed with the Orwellian title, the “Patient Protection and Affordable Care Act.”

Thus, the “reform” law signed by Obama—a law bursting with new taxes—contains not a syllable written in the only legislative body permitted by the Constitution to pass revenue bills. A variety of Constitutional scholars have weighed in on this skulduggery, of course, including Georgetown Law Professor Randy Barnett. Barnett writes, “If any act violates the Origination Clause, it would seem to be the Affordable Care Act. The Supreme Court has never approved the ‘strike-and-replace’ procedure the Congress employed here.”
George Will has a related piece, "ObamaCare's Doom" (Washington Post, 5/2/2014).

Will notes:
Case law establishes that the origination clause does not apply to two kinds of bills. One creates “a particular governmental program and . . . raises revenue to support only that program.” The second creates taxes that are “analogous to fines” in that they are designed to enforce compliance with a statute passed under one of the Constitution’s enumerated powers of Congress other than the taxing power. The ACA’s tax, which the Supreme Court repeatedly said is not an enforcement penalty, and hence is not analogous to a fine, fits neither exception to the origination clause.

The ACA’s defenders say its tax is somehow not quite a tax because it is not primarily for raising revenue but for encouraging certain behavior (buying insurance). But the origination clause, a judicially enforceable limit on the taxing power, would be effectively erased from the Constitution if any tax with any regulatory — behavior-changing — purpose or effect were exempt from the clause.
It's entirely possible that this case may end up in the Supreme Court.  Stay tuned...