New Obamacare challenge could have far-reaching effects

A new legal challenge to the Affordable Care Act draws on a surprising previous legal decision: the government's own successful 2012 defense of the massive law in the Supreme Court. 

An appeal filed Oct. 26 by the Pacific Legal Foundation says the act, popularly known as Obamacare, violated the Constitution because it included a tax on individual Americans and thus was required to originate in the House of Representatives, not the Senate. 

The bill that eventually became Obamacare was predominantly written in the Senate, although the Constitution's Article I, Section 7 requires that "all Bills for raising Revenue shall originate in the House of Representatives." 

The upper chamber worked around this requirement in two ways: by stripping out the text of a prior House bill and pasting in the text of the Affordable Care Act; and by presuming that the act's "individual mandate," which exacts a fine on any American who does not buy private health insurance, was a fee rather than a tax. 

The Supreme Court's 2012 decision in National Federation of Independent Business v. Sebelius, however, upheld the constitutionality of Obamacare by ruling that the individual mandate was a straight tax and thus within the taxing powers of Congress. 

By doing so, however, Chief Justice John Roberts eliminated any ambiguity about whether Obamacare was a revenue bill. That opens the door to a challenge on the grounds that it violated the Constitution’s Origination Clause. 

“The issue is whether completely replacing every word and even the title of a statute that comes from the House, and only retaining the bill number is in fact amending a bill in the Senate,” Georgetown law professor Randy Barnett told AMI Newswire. “It seems like a sham.” 

Barnett represented the National Federation of Independent Businesses in its 2012 constitutional challenge.

This will not be an easy sell to a high court that has already upheld key parts of Obamacare in previous rulings. The second part of the Origination Clause allows the Senate to "propose or concur on Amendments" to spending bills, and in practice the Senate has in many cases stripped out and rewritten other bills as it did with the Affordable Care Act. 

“If this counts as amending a bill, then the Senate essentially can originate revenue measures just by taking any bill and making it what they want,” Barnett said. “And that eliminates the Origination Clause’s function and purpose.”

“The Supreme Court wasn’t asked and didn’t address this question in the NFIB case,” Pacific Legal Foundation principal attorney Paul J. Beard II wrote in a statement announcing the appeal. “The question of whether the Constitution was obeyed needs to be litigated, and PFL is determined to see this important issue all the way through the courts.”

Barnett acknowledged that the procedural trick of throwing out all but the bill number on a proposed law has happened before, and he sees wide implications in having the high court decide on the practice.

“There are other [revenue raising] bills that really originated in the Senate, and then the question would be whether a decision in this case ought to be retroactive to previous enacted bills,” Barnett said.

The Supreme Court upheld the Affordable Care Act in two previous challenges, once in 2012 and again in June of this year.

The Origination Clause challenge is part of an amended lawsuit against the ACA, Sissel v. U.S. Department of Health & Human Services, according to the PFL.

Despite the broad Senate drafting powers that have been used in the past, the Origination Clause is not boilerplate. Many of the framers argued for the importance of limiting new revenue bills to the lower chamber; James Madison discussed the clause at length in Federalist 58. 

“We’re already well down the slippery slope,” Barnett said. “They’ve already gutted other parts of the Constitution. The Origination Clause would just join a list of clauses they won’t enforce.”