A federal appeals court will not reconsider a 2014 ruling that held Obamacare didn’t violate the Constitution’s “origination clause” that requires that revenue-raising bills start in the House, despite the law’s tax on people who do not obtain health insurance.
The issue split the U.S. Court of Appeals for the D.C. Circuit, however, and attorneys driving the challenge say they’ll fight on.
“We knew going in that this case would ultimately end up on the Supreme Court’s doorstep, and now it’s time,” said Timothy Sandefur, an attorney at the Pacific Legal Foundation.
The foundation had asked the circuit to rehear its pleadings in the case, Sissel v. the Department of Health and Human Services, with a full slate of judges after a three-judge panel turned them back last summer.
The panel said the Obamacare tax was “incidental” to the primary purpose of the Affordable Care Act, so it isn’t a revenue-raising measure as envisioned by the Constitution. “Some exercises of the taxing power are not subject to the Origination Clause,” the panel concluded.
The issue had been in doubt after Chief Justice John G. Roberts Jr.’s surprise decision three years ago saying that while Obamacare wasn’t allowed under Congress’ powers to control interstate commerce, it was valid as an exercise of its taxing power.
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Since the key language of Obamacare came from the Senate, opponents then said it violated another part of the Constitution that requires tax bills — or, more specifically, revenue-raising measures — to begin in the House.
But the judges ruled that not all bills that increase taxes are considered revenue-raising bills. They said the tax must be the primary purpose.
On Friday, four of the judges said the basis for the ruling was faulty and should be amended in an “en banc” review before the full court.
In a 32-page dissent, they began by saying Obamacare was, in fact, a big-time revenue-raiser.
“Lots of revenue. $473 billion in revenue over 10 years. It is difficult to say with a straight face that a bill raising $473 billion in revenue is not a ’Bill for raising Revenue,’” wrote Judge Brett M. Kavanaugh, who was appointed by President George W. Bush.
Yet the bill started in the House, as required by the Constitution, and the Senate amended that shell with its own language, which is permitted. So the panel opinion “reached the right bottom line, but relied on what I see as a faulty rationale,” according to Judge Kavanaugh.
“The panel opinion alters the longstanding balance of power between the House and Senate, and ultimately affects individual liberty,” he wrote. “We should correct the panel opinion’s error now rather than let it linger and metastasize.”
The trio of judges who initially heard the case was annoyed by that attack. They said the most recent Supreme Court analysis of the origination clause focused on the “purpose of the bill rather than the chamber where the bill began,” and they were following that example.
In defense of their ruling, they said the Supreme Court itself recognized in 2012 that while Obamacare could raise significant revenue, “its tax penalty was to spur conduct, not to raise revenue for the general operations of government,” wrote Judges Judith W. Rogers, Cornelia Pillard and Robert L. Wilkins, each of whom were nominated by Democratic presidents.
They said the tax is just one of three interlocking provisions that make the law work — a point underscored by Justice Roberts in a recent 6-3 ruling to uphold the law’s subsidies on the federal HealthCare.gov exchange.
Friday’s case before the D.C. Circuit involved a plaintiff named Matt Sissel, a Washington state artist who also served part-time in the National Guard.
Mr. Sissel said he did not want to pay for health coverage as required by Obamacare’s “individual mandate” and that he could pay for his medical expenses out-of-pocket, according to court papers.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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