Senators, Congressmen, States and others urge Supreme Court to take PLF Obamacare lawsuit
During the Thanksgiving holiday, several prominent members of Congress, ten state governments, as well as several national civil rights groups filed amicus curiae briefs with the U.S. Supreme Court urging the justices to hear our lawsuit challenging the constitutionality of Obamacare. You’ll recall that our case argues that if the Individual Mandate is a tax, as the Supreme Court said in 2012, it’s still unconstitutional because “all bills for raising revenue” must “originate in the House of Representatives,” but the Patient Protection and Affordable Care Act originated in the Senate. The lower court dismissed the case, holding that although the Individual Mandate is a tax, it’s not a “bill for raising revenue,” because Congress had broader purposes in mind when it imposed that tax—namely, overhauling the health insurance industry. Four of the D.C. Circuit Judges dissented.
One brief, filed by Senators Ted Cruz, John Cornyn, and Mike Lee, and signed by prominent libertarian attorneys Randy Barnett and Erik Jaffe, explains that the lower court got it wrong when it focused on Congress’s motives in imposing the tax. What’s relevant isn’t why Congress imposed a tax, but whether it imposed a tax: “a bill that imposes a tax, under the sole authority of the taxing power, is necessarily a bill for raising revenue,” they write. “Monetary exactions may only be characterized as ‘incidental’ to another object or ‘purpose’ when the measure imposing them is enacted and upheld pursuant to some other constitutional power.” In other words, since the Supreme Court held in 2012 that Congress was relying exclusively on its power to tax when it passed the PPACA, the PPACA must qualify as a “bill for raising revenue,” and questions of Congressional motive are really irrelevant.
Another brief, filed by more than 45 members of the House of Representatives, explains why the D.C. Circuit’s decision would undermine the checks and balances system of the Constitution. That system divides power between the House and Senate in order to protect the people’s freedom, but the “primary purpose” theory that the lower courts adopted in this case would allow the Senate to write tax laws basically at will. Unless the Supreme Court intervenes here, “the ‘cornerstone’ of the Great Compromise of 1787 could easily be rendered a dead letter simply by the Senate labeling any revenue raising bill with a regulatory ‘primary purpose.’”
The states of Texas, Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Kansas, South Carolina, and West Virginia, also filed a brief arguing that Obamacare is an example of “the precise ills that the Origination Clause was intended to prevent.” Knowing that voters would not have approved of the bill if given a fair chance to weigh its merits, Congressional leaders used a series of procedural tricks to evade the constitutional procedure. This means that the “accountability function of the Origination Clause” can easily be undermined by the Senate—resulting in the expansion of federal power at the expense of state authority.
In their brief, the Claremont Institute’s Center for Constitutional Jurisprudence argues that the power to originate tax bills “is not a prerogative of the House of Representatives that House members can waive.” This is important because some critics have argued that the House’s failure to object to the Senate’s actions in creating the Individual Mandate should mean this lawsuit cannot go forward. But as this brief explains, the Origination Clause—one of the crucial compromises that allowed the Constitution to be written and ratified—is not designed to protect the House, but to protect the people. The authors of the Constitution “did not grant Congress the authority to alter its own power.”
The Mountain States Legal Foundation’s brief focuses on the question of whether the ratification of the Seventeenth Amendment changes how the Origination Clause should work. Some have contended that because the Senate is now directly elected, rather than chosen by state legislatures, the democratic protections provided by the Origination Clause are obsolete. But as MSLF explains, the Senate still primarily represents the state as a whole, rather than local districts; is never wholly re-elected; and its members serve six-year terms—whereas the “the House of Representatives remains the most democratic body of Congress and is in the best position to reflect the will of the people.” By keeping the taxing power in the hands of the most democratic branch, “the Origination Clause remains a vital check on the power of the federal government today.”
A brief filed by the U.S. Justice Foundation and other groups emphasizes the importance of the Origination Clause in light of the Founders’ commitment to the principle of “no taxation without representation.” The House is closer and more responsive to the people, and “it [is] a maxim that the people ought to hold the purse-strings.” And the American Association of Physicians and Surgeons’ brief urges the Supreme Court to reject the “purposive test” applied by the lower courts because “the phrase ‘Bills for raising Revenue’ refers per se to the set of bills that include any Tax, Duty, Impost, or Excise.” And the Southeastern Legal Foundation and Beacon Center of Tennessee filed a brief asking the Court to reiterate the rule that it endorsed in the 1990 case of Munoz-Flores, and which the lower court brushed aside: a revenue-raising law is exempt from the Origination Clause only if the funds it generates are specifically earmarked for a distinct program. But the funds raised by the Individual Mandate aren’t: they go into the general treasury for Congress to spend as it will.
The Solicitor General has requested an extension of time to respond to our petition, so that his response is due December 28. After that, we’ll get a chance to file a final brief, and then it’s up to the justices to decide whether to hear our case.
What to read next
Pacific Legal’s Formula for Winning Cert: “Evil villains, outrageous facts, and sympathetic clients”
You need doggedness and determination, and real subject matter expertise. You’ve got to be able to write great cert petitions because that’s the way you get in the door, but you also need to find clients that judges can rule in favor of.