A coalition of congressional leaders and states have filed friend of the court briefs in support of our case challenging the constitutionality of Obamacare under the Constitution’s Origination Clause. In July, a three-judge panel of the D.C. Circuit Court of Appeals rejected our lawsuit, holding that the Individual Mandate may be a tax, but it isn’t a “bill for raising revenue,” because its “primary purpose” is to force people to buy health insurance, rather than to raise money for the government. We’ve asked the entire D.C. Circuit to rehear the case, pointing out that this vague “primary purpose” test has no foundation in the precedent, and would allow Congress essentially to ignore the Origination Clause at will.
Senators John Cornyn and Ted Cruz have filed a brief, co-signed by Georgetown law professor Randy Barnett, which points out that the “primary purpose” test is incompatible with what people understood the Constitution to mean when it was written and ratified. Under the original public meaning, the term “bill for raising revenue” was understood to mean any law that’s passed solely under Congress’s taxing power—and according to the NFIB v. Sebelius decision from two years ago, Obamacare is just such a law. It wasn’t an exercise of any Congressional power other than the power to tax—and therefore, it should have started in the House, as the Constitution’s authors and ratifiers expected. You can read that brief here, and read more about it at The Volokh Conspiracy here.
In another brief, House Majority Leader Kevin McCarthy, House Majority Whip Steve Scalise, and the Judicial Education Project, argue that “if anything is a bill for raising revenue, the ACA is.” As they point out, that 2,000+ page bill is chock full of taxes; everything from a surtax on investment income to an excise tax on indoor tanning salons, to a fee on pharmaceutical importers. All of these put money into the general fund, to be spent however Congress chooses, and are therefore taxes, not fees or penalties or anything else. Thus they should have originated in the House. Worse, the panel decision—by holding the ACA exempt from the Origination Clause because its “primary purpose” is to control behavior—“turns the Constitution on its head,” because it “would make the Clause entirely inapplicable to the very taxes most threatening to individual liberty.” You can read that brief here.
A third brief, filed by the states of Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Kansas, Nebraska, South Carolina, South Dakota, Texas, and West Virginia, argues not only that any law passed solely under Congress’s taxing power must be a “bill for raising revenue,” but that the Senate’s power to “amend” House-created bills cannot include the power to completely gut them and substitute entirely different language. Such a procedure would make the Origination Clause “a mere paper tiger.” Yet that is just what happened in this case. You can read that brief here.
Finally, 43 members of the House of Representatives have filed another brief, pointing out that the panel’s decision conflicts with precedent regarding the Origination Clause, and that the tax imposed by Obamacare is not just “incidental” to a law enacted for “other purposes”—on the contrary, the Individual Mandate is just what the founders were concerned about when they wrote the Origination Clause: the abuse of Senatorial power to violate individual liberty free of the democratic accountability that disciplines the House of Representatives. Dividing the power to tax between the Senate and the House, these amici point out, is just as important as dividing other powers between the three branches of the federal government, or dividing power between the federal government and the states. You can read that brief here.
We’re grateful for the support of our amici, and we hope that the D.C. Circuit will choose to reconsider this case and apply the Constitution’s carefully designed restrictions on the power to tax.