The legal battle over Obamacare isn’t over.
A lawsuit that could nullify the president’s signature health care law on the basis of the Constitution’s Origination Clause is gaining momentum as it goes Thursday before the D.C. Circuit Court of Appeals.
Filed by the Pacific Legal Foundation in Sacramento, Sissel v. U.S. Department of Health and Human Services alleges that Affordable Care Act is unconstitutional because the bill originated in the Senate, violating the Constitution’s mandate that “all bills for raising revenue shall originate” in the House.
“I think it’s clear that the ACA ’tax’ was unconstitutionally passed, and the only question is whether the procedural trickery that the Senate used will be allowed to stand,” said PLF attorney Tim Sandefur. “The Constitution forbids the Senate from creating bills for raising revenue, and that’s what the Senate did here.”
Interest in the argument is growing despite a lower court’s ruling against the lawsuit in June. Forty members of Congress have filed a friend-of-the-court brief in support, while the House Judiciary Committee’s subcommittee on the Constitution and civil justice held a hearing last week on the meaning of the Origination Clause.
Conservative columnist George F. Will weighed in on behalf of the challenge in a May 2 op-ed, noting that the heart of Supreme Court Chief Justice John Roberts’ 2012 ruling upholding the ACA that the penalty for non-compliance was in fact a tax.
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“Two years ago, the Supreme Court saved the ACA by declaring its penalty to be a tax,” said Mr. Will. “It thereby doomed the ACA as an unconstitutional violation of the origination clause.”
Democrats are having none of it. At the April 29 subcommittee hearing, Democrats accused Republicans of using the Constitutional argument as a political tool to overthrow Obamacare.
“I think the arguments are frivolous,” said Rep. Jerrold Nadler, New York Democrat, adding, “We should in Congress be seeking to do the business of the American people instead of holding frivolous hearings commenting on court decisions that are ongoing.”
Subcommittee chair Rep. Trent Franks countered that, “if the Senate can do what they did, then we can tear the Origination Clause out of the Constitution.”
“If it is frivolous for the Constitution committee of the House of Representatives to prevent that, then count me frivolous,” said the Arizona Republican.
There’s no disputing the bill that became the ACA bore little resemblance to the original text from which it spawned. Senate Democratic leaders took an obscure three-page House bill on housing tax credits for veterans and simply replaced it with 2,709 pages of the Affordable Care Act, then returned it to the House in a process known as “gut-and-amend.”
The lawsuit argues that the “amendments” were not germane to the original bill. To illustrate the point, Rep. Louie Gohmert, Texas Republican, waved a copy of the unamended bill during the hearing, then picked up and dropped on the dais with a thud the Affordable Care Act.
“Tell me where in this bill any of these topics in this bill were ever found,” said Mr. Gohmert. “Any witness that cares to tackle that, point me out anything in the new bill that was in the old bill.”
District Court Judge Beryl A. Howell held in June that the ACA’s revenue-raising was “incidental” to its main purpose and thus was not a “bill for raising revenue.” She also said that the Senate had only amended a bill that began in the House, and that “it is for Congress, not the courts, to decide whether an amendment is properly germane in any given case.”
Rep. Steve Cohen, Tennessee Democrat, implied that the Origination Clause was no longer relevant because the Senate is now elected, whereas senators were appointed by state officials at the time of the nation’s founding.
“It changed with the 20th century when we required the Senate to be elected by the people,” said Mr. Cohen, adding, “The senators are now human beings, not chattels of state capitols.”
But Rep. Steve King, Iowa Republican, accused House Democrats of refusing to challenge President Obama, even when he threatened during the State of the Union to bypass Congress by using his executive power.
“All the Democrats stood up and applauded — the constitutional authority that’s granted to them in Article I being usurped by the president of the United States right in from them,” said Mr. King. “So I’m not very moved by the constitutional arguments I hear from my colleagues these days.”
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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