Pacific Legal Foundation continues to be on the front lines in the constitutional challenge to the Patient Protection and Affordable Care Act. In a new complaint filed yesterday on behalf of client Matt Sissel, PLF attorneys have asked Judge Beryl Howell to rule that Congress ignored the Constitution’s Origination Clause when it enacted the Obamacare “tax.” We’ve also asked the court to declare the Individual Mandate unconstitutional under the Commerce Clause—thereby clarifying whether Chief Justice John Roberts’ opinion is binding precedent, or merely non-binding “dicta,” as some lawyers have argued.
The Origination Clause requires “all bills for raising revenue” to “originate” in the House of Representatives. But the Obama Administration’s health care law did not originate in the House; it originated in the Senate, when Senator Harry Reid “amended” a bill the House had passed by striking out all of its text and replacing it with the Senate-written bill that eventually became Obamacare. At that time, Congress claimed that the bill was not a tax—and indeed, the Obama Administration continues to insist that it is not a tax—but this summer the Supreme Court issued a 5-4 decision ruling that while Congress had no power to force people to buy health insurance, it did have power to tax them for not buying insurance. The justices did not address the question of whether such a “tax” was constitutional under the Origination Clause, because none of the lawyers raised that issue—until now.
The founding fathers wrote the Origination Clause because they were deeply suspicious of government’s power to tax. Knowing how liable it was to be abused, they wanted that power kept as close to the voters as possible. The Senate—which at the time was not even elected by the people at all—could not be trusted with a power that could, in the words of one of the Constitution’s detractors, “light upon the head of every person in the United States,” shouting “Give! Give!” Conscious of such concerns, the founders provided that all bills for raising revenue would have to originate in the House most responsive to the voters.
Congress ignored this rule when it passed what became the Patient Protection and Affordable Care Act. As we explain further in this litigation backgrounder, the Senate used a “shell bill” procedure instead, scooping out the entire contents of a bill the House had passed, and replacing it with language the Senate had concocted. (Of course, they had to do this, since Congress was struggling to get the bill passed before anyone had time to read it.)
The Supreme Court has said that courts can consider questions about the Origination Clause. But so far it has never addressed a situation like this; all previous Origination Clause cases involved legitimate amendments to tax bills the House had passed. Once again, Obamacare is unprecedented—no prior case has involved such an egregious violation of constitutional requirements.
In addition to the Origination Clause argument, our new complaint asks the court to explain what parts of Chief Justice John Roberts’ June 28 opinion are binding precedent and which are not. Legal scholars—and the Ninth Circuit Court of Appeals, in a recent opinion—have expressed confusion about what parts of the decision qualify as law, and what parts are simply Chief Justice Roberts’ personal views, or what lawyers call “obiter dictum.” We’ve asked the judge to declare that Roberts’ ruling about the Individual Mandate—that it exceeds Congress’ authority under the Commerce Clause—is indeed the law of the land, since it was joined by four other justices.
Since June, the Obama Administration has been spinning the Supreme Court’s decision as if it had won the case and upheld the Individual Mandate. In fact, that did not happen. Five justices declared the Individual Mandate—the provision forcing Americans to buy insurance whether they want to or not—to be unconstitutional. Chief Justice Roberts went on to declare that Congress could impose a tax penalty on people who failed to buy insurance—but only because that penalty was relatively modest. If it became severe enough to be essentially the same as a Mandate, Roberts explained, he would have to find that unconstitutional as well. And, of course, such a tax would have to satisfy other constitutional requirements, including the Origination Clause, to be valid.
Contrary to what the Obama Administration and its allies have claimed, the government did not win the Obamacare case. Nor is the battle over. PLF’s defense of the Constitution has only just begun.