Obamacare: The Origination Clause issue isn’t a conservative-liberal thing

August 07, 2015 | By TIMOTHY SANDEFUR

Obamacare remains a partisan issue. Although most Americans have never supported it, and still don’t, supporters and opponents line up along predictable conservative/liberal lines. But the constitutional issues involved in Obamacare, not so much. Liberals have as much at stake in the Origination Clause question as conservatives do.

The purpose of the Origination Clause was to ensure that the power to tax—the most basic means of government control over citizens—is kept in the hands of the most democratic branch of the federal government: the House of Representatives, which is entirely elected every two years. The founders chose not to give that power to the Senate, the least democratic branch of the federal government (which is never entirely replaced, and which originally wasn’t even chosen by voters). And their reason was to prevent precisely the sort of thing that is going on with Obamacare. As Judge Kavanaugh put it today, the decision in the Sissel case allows taxes that have “purposes” other than revenue to bypass the Origination Clause requirement. But if Congress can regulate personal behavior through taxes, and escape this important democratic principle that way, what’s to stop a conservative Senate from using that power to impose prohibitive taxes on things liberals care about? How about a tax on abortion? How about a tax on medical marijuana?

That’s why the leading precedent on this issue, Munoz-Flores, was written by Justice Thurgood Marshall, hardly a conservative. Justice Marshall—rejecting a dissent by Justice Scalia—held that the Origination Clause is a meaningful limit on Congress that must be enforced going forward. “At base,” wrote Marshall, “the Framers’ purpose was to protect individual rights. As James Madison said in defense of that Clause: ‘This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.’ Provisions for the separation of powers within the Legislative Branch are thus not different in kind from provisions concerning relations between the branches; both sets of provisions safeguard liberty.”

Whatever you think about Obamacare, there’s no excuse for ignoring constitutional procedure. And whenever you do ignore those procedures, it will come back to haunt you. While opinion on Obamacare may be split between conservatives and liberals, obeying the Origination Clause should not be.