Frequently asked questions about our Obamacare challenge

As readers of this blog are aware, PLF is preparing to file a cert. petition on Monday asking the Supreme Court to hear our challenge to Obamacare, Sissel v. U.S. Dep’t of Health & Human Servs., et al.  Here are some FAQs about the case:

Who is Matthew Sissel?

Matthew Sissel is an artist, entrepreneur, decorated veteran, and member of the Washington State National Guard. He received the Bronze Star for his service as a combat medic in Iraq.

Sissel is healthy and chose not to buy health insurance so he can use the savings from not paying costly premiums to invest in his business. He wants the freedom to manage his budget, including his medical expenses, without government oversight. He would pay for his own emergency care, but he wishes health insurance companies could offer people like him “catastrophic only” health care coverage. Obamacare prohibits those types of policies in order to force young, healthy people to buy unnecessarily inflated policies that subsidize a wasteful government system.

What is the legal basis for the challenge?

Sissel raises the question of whether the Affordable Care Act (ACA) is unconstitutional because it violates the Origination Clause. Under the Origination Clause, “[a]ll bills for raising revenue” must “originate in the House of Representatives.” In NFIB v. Sebelius, the Supreme Court held that the ACA’s individual mandate is a tax, and the ACA also contains a dozen new taxes estimated to raise federal revenue by billions by 2019. Yet the ACA and all its taxes originated in the Senate. While the Senate may amend bills for raising revenue, the Senate took a six-page House bill providing benefits to military members buying their first homes, erased all of it except the bill number, and inserted the 2074 pages of the ACA with 17 massive new taxes.

Sissel argues that such a procedural trick violates the Origination Clause for two independent reasons: (1) the original House bill was not one “for raising Revenue” within the meaning of the Clause, so the Senate could not amend it with new taxes; and (2) the Senate’s complete gut of an unrelated House bill and substituting the ACA was not a constitutional “Amendment” within the meaning of the Clause.

Who cares if this bill originated in the House or the Senate? Isn’t that just a procedural formality?

The Origination Clause is one of many “procedural formalities” the Founders included in the constitution in order to protect individual liberty. The Clause serves the same purpose today as it did then: to ensure that the taxing power is kept as close to the voters as possible. Its enforcement prevents Congress from abusing its tax power without proper accountability. And with a broadly expanded taxing power, democratic controls over the process should be at least equally broad. In the Munoz-Flores case, the Supreme Court emphasized this point when it promised to enforce the Origination Clause.

Hasn’t the Supreme Court definitively upheld the constitutionality of the ACA? 

No. The most recent Supreme Court case involving the ACA, King v. Burwell, involved a narrow question of statutory interpretation. Although the Supreme Court ruled in NFIB v. Sebelius that the individual mandate was valid under the Direct Tax Clause, it did not consider whether the statute was unconstitutional under other constitutional provisions. Indeed, it expressly stated that it was not deciding those other issues.

What’s the procedural history of the Sissel case?

On July 29, 2014, a D.C. Circuit panel ruled that the ACA mandate tax’s “primary purpose” was not to raise revenue, and therefore, such tax does not implicate the Origination Clause. PLF filed a petition for rehearing en banc and waited ten months for an answer.

On August 7, 2015, the D.C. Circuit denied the petition over the strong dissent of four judges and with an expanded response from the original panel members. In a 32-page dissent, Judge Brett Kavanaugh and his colleagues argued that the ACA “easily qualifies as a ‘bill for raising Revenue,’” and that the panel’s analysis was dangerous and “would degrade the House of Representative’s prerogative to originate revenue-raising bills.” The dissenters argued that en banc review was necessary to correct the panel’s serious assault on the Constitution’s taxpayer protections, even though it would have upheld the constitutionality of the ACA as a valid amendment of a House revenue bill.

The original panel members responded to the dissent with an expanded opinion of their own, rejecting the alternative holding and warning that it would “treat[] the Origination Clause as empty formalism.” Sissel argues that the dissent and original panel members are both correct in pointing out the flaws of the opposing opinions.

PLF is now filing a cert. petition asking the Supreme Court to hear the case and reverse the D.C. Circuit.

Do you think Sissel will prevail in the Supreme Court?

It’s never a safe bet to guess what justices may think or make predictions of how they will vote.  PLF doesn’t specialize in cases that are easy. 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. Four justices must vote to hear the case and five to reverse the D.C. Circuit. But we think we’re right on the law, and we hope the Supreme Court will agree with us.

Shauneen Werlinger is a legal fellow in PLF’s Washington, D.C., office.