January 12, 2016

Supreme Court Justices and Members of Congress will discuss Sissel case this week

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

After five-and-a-half years of litigation and advocacy by PLF, Matt Sissel’s constitutional challenge to ObamaCare will be reviewed and discussed at the highest levels of the federal government, at least in the two branches not headed by someone named Obama. In short, Sissel’s constitutional challenge will be discussed this week by Justices of the Supreme Court and Members of Congress, as they conduct their respective business in marble buildings across First Street from each other in Washington, DC.

Sissel’s suit has always centered on ObamaCare’s offensive requirement that he must either buy inflated health insurance policies that subsidize other costly legal mandates or pay a personal penalty, which the Supreme Court majority held to be a “tax” for not buying health insurance in 2012.  For the past three years, Sissel has focused on the fact that such a tax in ObamaCare is invalid because it originated in the Senate in violation of the Origination Clause.

As Tim Sandefur previously explained, briefing on Sissel’s Petition for Writ of Certiorari in the Supreme Court was completed in late December, when PLF took only one day to prepare and file its reply brief. That was just in time to meet a distribution schedule for the case to be considered in the justices’ private conference this Friday, January 15. The justices may vote on the case this Friday, but the public is not likely to learn anything of their disposition until January 19.  If the justices are inclined to hear the case, their current practice is to take another week to study the jurisdictional and standing issues before they make a final decision. A disappointing petition denial could be issued on January 19, or the justices could indicate that they are “re-listing” the case to a later conference for further consideration. Thus, we will likely get at least some hint as to how their initial discussion went early next week.

In the Rayburn House Office Building, half-way down Capitol Hill from the Supreme Court Building, the House Judiciary Committee, Subcommittee on the Constitution and Civil Justice will have a very timely hearing on “The Original Meaning of the Origination Clause.” The hearing will begin Wednesday morning, January 13 at 9:00 a.m. (Eastern Time). It will be my second opportunity to testify on that subject before the Subcommittee, and I begin my prepared remarks with an appreciation to Members of Congress who take their obligation seriously to interpret and abide by the original meaning of the Clause.  More information on the hearing, including the witnesses’ written testimony and a link to the webcast is available at this link.

Here is an excerpt from the beginning of my written submission:

The Origination Clause today is treated by some as an annoyance to be dispensed with by empty artifices. Yet the broader public should be thankful that many Members of Congress, especially in this Subcommittee, take the Clause seriously and seek to better understand its requirements.

It is terribly important for the House of Representatives to interpret and follow the Origination Clause according to its original public meaning, but as is explained further below, that does not lessen the importance of the courts enforcing its original public meaning as well. Part of the genius of the constitutional separation of powers is that individual liberty is better protected when each branch of government has an obligation to interpret and follow a written constitution, and that is the requirement of our U.S. Constitution.

There is also a dialogue between the branches on the proper interpretation of the Constitution. When one branch neglects its duty to enforce individual rights secured in the Constitution, including the right to be free from taxes that violate the Origination Clause, it is even more important for the other two branches to do what they can to better protect the neglected right. On this day, the legislative and judicial branches are actively debating the proper interpretation and application of the Origination Clause, so this hearing may not only inform Congress regarding its obligations, but it may also help inform the courts as well….

The Pacific Legal Foundation (PLF) represents Matt Sissel in his constitutional challenge to the individual mandate tax in the ObamaCare law…. As this Subcommittee knows, the case turns on the meaning of the Constitution’s requirement that all “Bills for raising Revenue” originate in this House. Although today’s hearing focuses on the Origination Clause more broadly, the government’s strained arguments in Sissel are a paradigm example of what the Clause rejects. The Sissel case is also a great teaching mechanism for other reasons, including the case’s stark facts, its unusual legal posture, the unprecedented legislation that required unconstitutional tactics to pass, and the able counsel and amici involved—including many members of this Subcommittee and House.

Sissel also has the potential to establish a landmark ruling, further defining several issues related to that Clause. If Sissel’s petition for certiorari is denied, however, other cases are pending that raise the same Origination Clause problem with ObamaCare and still others are sure to be filed. Given the admitted breadth and significance of the law by all parties, and that numerous judges have already debated key Origination Clause issues, the Sissel case presents an excellent opportunity for the Supreme Court to resolve those issues now rather than waiting and potentially causing further problems with implementing its ultimate ruling.

The Supreme Court’s consideration of the Sissel case makes this hearing quite timely, but the House of Representatives must enforce its prerogatives and obligations under the Clause, regardless of how the courts rule. Strangely, a few cynics have questioned the sincerity of those who oppose ObamaCare for policy reasons and also express concern about the Origination Clause problem. Yet there is no inconsistency in opposing ObamaCare’s wrongheaded policies and also decrying a constitutional defect in its method of enactment.

Indeed, the policy and constitutional defects with ObamaCare are related. The extremely narrow and unprecedentedly partisan vote margin for a major piece of social legislation led to a highly questionable legislative process which undermined the normal compromises that would have improved the bill. It also caused the Senate to adopt a parliamentary maneuver that violated the Origination Clause. It would be hypocritical to raise only one concern, even if they were unrelated. And finally, Members’ highest obligation is not to voice policy objections but to support and defend the Constitution, as required by their oaths of office.

As zealous defenders of the Constitution ourselves, it is our dearest hope that the Supreme Court hears Sissel’s case on the merits and establishes meaningful protections for taxpayer rights consistent with the original meaning of the Origination Clause. But if the High Court declines to take that case, citizens must bring other cases and urge our representatives in Congress to enforce those neglected rights with greater care.

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