What’s the current status of the lawsuit?
We’re currently waiting for the judge to decide the government’s motion to dismiss. Around the end of last year, the government asked the court to throw out our lawsuit, and we filed our opposition to that a couple months ago. We’ve asked the court to hold a hearing so we can argue these issues in person, and we’re waiting to see if the judge will allow that or just decide the matter now. If the case is dismissed, we’ll appeal to the Court of Appeals for the D.C. Circuit, and from there to the Supreme Court, if necessary. If not, then we’ll go forward and ask the judge to strike down the law.
Do you think you’ll win?
It’s never a safe bet to guess what a judge is thinking. And we don’t bring cases based just on whether or not we’ll win. We bring cases that we think have legal and constitutional merit, in defense of our principles of limited government and individual rights. A lot of these cases are uphill battles, including this one. But we think we’re right on the law, and we hope the judge will agree with us.
Aren’t there a lot of taxes in Obamacare? Not just the Individual Mandate “tax”?
Yes; the “Patient Protection And Affordable Care Act”—ironically named, since it does the opposite of all those things—is riddled with new taxes, including the Individual Mandate “penalty” that the Supreme Court interpreted as a tax in its decision in June. We think this shows that the whole act is unconstitutional.
Does this “tax” also violate the Apportionment or Uniformity Clauses?
Arguments to that effect can be made, and you can read more about that here. But we’ve chosen to concentrate on the Origination Clause.
Did Chief Justice Roberts purposely construe the Individual Mandate as a “tax” in order to set up this kind of argument?
We don’t think so. We think Chief Justice Roberts issued the decision he really thought best, even if we disagree strongly with it. But whatever his motive, we’re concerned with whether this law is constitutional or not.
Who cares if this bill originated in the House or the Senate? Isn’t that just a procedural formality?
The Constitution creates “procedural formalities” in order to preserve individual rights. Some things must get a 2/3 vote, the President can veto things, the Congress can override the veto, et cetera. These rules were created to limit what government can do, so they should be respected. And especially in this case: if Congress is going to be prevented from abusing this “tax” power to impose all sorts of mandates on us, then the rule that the Founders created—to ensure that the taxing power was kept as close as possible to the voters—really needs to be enforced. In the Munoz-Flores case, the Supreme Court emphasized this point strongly when it promised to enforce the Origination Clause.
What about Justice Scalia’s warning in the Munoz-Flores case that the courts shouldn’t be in the business of enforcing the Origination Clause? What about conservative fears of judicial activism?
We do not believe the Origination Clause should be enforced only by Congress itself. Justice Scalia argued that the “enrolled bill rule” requires the Courts to accept Congress’ word for it when Congress says a bill was properly enacted. But under that theory, the courts could never ensure that Congress obeyed the legal rules imposed by the Constitution. As the Court said in Munoz-Flores, “[a]lthough the House certainly can refuse to pass a bill because it violates the Origination Clause, that ability does not absolve this Court of its responsibility to consider constitutional challenges to congressional enactments.” And while we don’t think judges should be “activists” in the sense of enforcing their own personal views as law, we think they should be “active” in enforcing the Constitution when Congress has ignored it. The only alternative would be a “passive” judiciary which allowed Congress to ignore its legal limits.
No. Although the Court did declare that the Individual Mandate “tax” was not an unconstitutional “direct” tax, it didn’t discuss the Constitution’s other tax clauses.
Aren’t there other laws where the Senate replaced a House-enacted bill with a tax that it created? For instance the recent “Fiscal Cliff” deal?
There have been other cases in which Congress has evaded the Origination Clause, at least in spirit. In a case called Flint v. Stone Tracy, the Court said that the Senate may add taxes to a bill that the House has passed, so long as the Senate amendment is “germane” to the original bill. We don’t think that argument works here, since the bill the House passed had nothing whatsoever to do with health insurance. In the 1980s, there were several cases filed challenging the constitutionality of the TEFRA tax increase, but none of those got to the Supreme Court; they were mostly dismissed for various procedural technicalities. The “Fiscal Cliff” bill appears to have originated in the House as required, admittedly with some technical complications.
Doesn’t this “shell bill” or “gut-and-amend” procedure happen all the time?
It’s impossible to say how frequently or infrequently it’s used, but it’s not uncommon at the state level. It’s happened in Congress, too. But the Supreme Court has never had a chance to address whether it’s constitutional, and particularly in a case where it’s used as a trick to get around the clear mandate of the Constitution.
Don’t you care about ensuring that the poor get the health care they need?
It’s unfortunate that there are people who can’t get the health care they need, and it would be a better world if they could. But that isn’t justification for taking away money that other people have earned, to force them to pay for other people’s health care. Stealing is wrong, no matter what the motive, and it is unjust to force a taxpayer, who is not responsible for the poor person’s plight, to pay for that person’s care. And one of the biggest reasons why health care is unaffordable is because government is already so heavily involved in regulating and controlling the health care and health insurance industries—particularly in ways that result in the patient not being the person who makes the choices and pays for care. When the customer doesn’t pay the business, the business won’t strive to satisfy the customer. Genuine health care reform would be market-oriented and would empower patients by making them—and not government—responsible for choosing where to shop and how much to pay. And keep in mind that Obamacare isn’t health care legislation at all. It’s health insurance legislation: it doesn’t have anything whatsoever to do with care—only insurance. You can have all the insurance in the world, and still get no care if the system chases doctors away and restricts the availability of medicine. Finally, no matter what one’s views about the right solution to the nation’s health care problems, there’s no excuse for violating the Constitution in order to achieve one’s policy preferences. If the American people really want more government control over our health care choices, they should use the constitutional amendment process to do it—not ignore or evade the Constitution’s requirements.
What other Obamacare cases is PLF working on?
We’re proud to say that no organization in America has been more deeply involved in the legal efforts against Obamacare than PLF. In addition to our Origination Clause case, we participated in all levels of the litigation that culminated in the NFIB decision last year, and we continue to be involved in several others, including the Coons case challenging the constitutionality of the Independent Payment Advisory Board. You can read about that here.