October 15, 2014

Is PLF’s Obamacare challenge headed to the High Court?

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

“Developments in the last ten days make it more likely that the entire U.S. Court of Appeals for the D.C. Circuit will agree to hear the leading challenge by the Pacific Legal Foundation (PLF) to the Obamacare individual-mandate penalty — and whoever does not prevail at this level will have a compelling case to take to the Supreme Court.” So begins my op-ed that National Review Online just posted on its homepage.

In it, I link to posts by Paul Beard, Professor Randy Barnett, and Tim Sandefur on the recent developments in our case on behalf of Matt Sissel, challenging the constitutionality of the individual-mandate penalty as a violation of the Constitution’s Origination Clause. Among those developments was an order from the D.C. Circuit last week, instructing the Obama Administration to respond to PLF’s petition for rehearing, and an impressive set of amicus briefs supporting PLF’s petition for rehearing filed yesterday, which help confirm that this is no ordinary litigation.

As Paul Beard noted, the D.C. Circuit took only two days to order the government to respond to our petition for rehearing. Any order to respond to a motion for rehearing is unusual. Indeed, under the circuit court’s rules, no party is even allowed to respond to a petition for rehearing en banc without court approval. Tim Sandefur does a great job here of summarizing four of the compelling amicus briefs filed in support of our petition for rehearing en banc from congressional leaders and 13 states.

Yet, in my NRO piece, I explain why I think the matter is likely to be resolved by the High Court in the end: “The Origination Clause simply can’t be dismissed as some nuisance that Congress can easily defeat by declaring multiple ‘purposes’ for imposing a tax. That is why the Supreme Court should ultimately rule in [Matt Sissel’s] favor, and however reluctantly, strike down Obamacare as unconstitutional.”

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