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Round Two

Another constitutional challenge to Obamacare.

Mar 25, 2013, Vol. 18, No. 27 • By TERRY EASTLAND
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At issue in the Supreme Court’s most important case last year was the constitutionality of the “individual mandate” in the Patient Protection and Affordable Care Act, aka Obamacare. The mandate, which takes effect in 2014, requires most Americans without health insurance to buy a policy providing a minimum level of coverage as defined by the government or else make to the Internal Revenue Service a “shared responsibility payment,” which the law describes as a “penalty.” For individuals lacking the minimum essential coverage, the penalty when fully phased in will be 2.5 percent of income per year. For families it will be $695 per uninsured family member per year or 2.5 percent of income, whichever is higher, up to a maximum of $2,085.

Obamacare

In National Federation of Independent Business v. Sebelius, in the pivotal opinion in the case, Chief Justice John Roberts said that the Commerce Clause grants Congress the power to “regulate commerce” but not to compel it. Because the latter is what the mandate aims to do, he continued, it can’t be supported as an exercise of the Commerce Clause. However, adopting a “saving construction” of the law, he read the mandate as imposing not a penalty but a tax on those without insurance. And because it was “just a tax hike,” as he called it, the mandate was permissible, a legitimate exercise of Congress’s enumerated power “to lay and collect Taxes.”

Roberts summed up the law this way: “The Federal Government does not have the power to order people to buy health insurance. .  .  . [It] does have the power to impose a tax on those without health insurance.”

Not surprisingly, given its continuing unpopularity, the individual mandate is being taken again to court. Matt Sissel, who runs an art studio and gallery in Cedar Rapids, Iowa, objects to the government’s effort, as he puts it, to conscript him into a health care program. He would pay his own health care expenses out of pocket. Sissel was among the many parties that challenged, on the basis mainly of the Commerce Clause, the constitutionality of the mandate in the group of cases that resulted in NFIB. Since that case was handed down, Sissel has declined to end his objection to Obamacare and is now advancing another constitutional argument against it.

In NFIB, Chief Justice Roberts wrote that “any tax must .  .  . comply with the other requirements in the Constitution.” Roberts found that the tax for not having health insurance complies with certain constitutional requirements. But he didn’t address whether it satisfies Article I, Section 7, Clause 1, which provides: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The clause is known as the Origination Clause, and Sissel’s new claim is that if the individual mandate is to be read as an exercise of the congressional power to lay taxes, then it is unconstitutional, since it is a “bill for raising revenue” that originated in the Senate and not, as it should have, in the House of Representatives.

The government says, to the contrary, that the Affordable Care Act (ACA) originated in the House and is not “a bill for raising revenue.” And because it is not such a bill, its enactment, the government says, would have been consistent with the clause even if, for the sake of argument, it had originated in the Senate.

The Origination Clause is one of those parts of the Constitution that define the structure of the government and how it is to operate. And it originated, you could say, in the Constitutional Convention of 1787 with those Framers who wanted to ensure that the “power over the purse” lay with the legislative body closer to the people. Thus, as Case Western Reserve University law school professor Erik Jensen writes in the Heritage Guide to the Constitution, Elbridge Gerry of Massachusetts proposed a clause that would have required all money bills to originate in the House and given the Senate no power to amend. With proponents of national power opposing an origination clause in any form​—​James Wilson of Pennsylvania said that “if both branches were to say yes or no, it was of little consequence which should say yes or no first”​—​the clause that was finally agreed upon, Jensen says, was “closer to Wilson’s vision than to Gerry’s,” requiring that only bills for raising revenue originate in the House, and giving the Senate the amendment power.

Over the years that power has been understood to be so broad, Jensen writes, as to permit the Senate to strike and “replace the entire text of a bill that technically originates in the House.” That’s what happened in the case of the ACA. H.R. 3590 modified a number of tax-credit, tax-penalty, and estimate-tax provisions of the Internal Revenue code. Sent to the Senate, the bill became something else, its entire text deleted and replaced with provisions that ultimately became the ACA.

Sissel isn’t challenging the “strike-and-replace” procedure​—​also known as “gut-and-amend”​—​in a general sense, but rather, as his lawyers put it, “the constitutionality of a bill for raising revenue which originated in the Senate through the use of that device.”

Here, then, is the key issue in Sissel’s case: whether or not the mandate is a bill for raising revenue. That was also the critical question in the Court’s most recent Origination Clause case, United States v. Munoz-Flores, decided in 1990. Under review was a special assessments statute that imposed mandatory monetary penalties on those convicted of federal misdemeanor crimes and which appeared to originate in the Senate. The Court recognized precedents dating back more than a century that distinguished between bills that establish federal programs and raise revenue to support them, and bills that raise revenue to fund ordinary government expenses and obligations. The Court located the special assessments statute in the first group. Thus, it was not a bill for raising revenue, and its origins in the Senate posed no constitutional problems.

The Supreme Court has decided eight Origination Clause cases, including Munoz-Flores. And it has never found an act of Congress in violation of the clause. Sissel would like his case to be the first in which the Court declares a law unconstitutional on account of its origination. Yet it’s hard to see how Sissel’s case makes its way up to the High Court. The federal appeals court in Washington, with Judge Laurence Silberman writing, already has said that the purpose of the mandate isn’t to raise revenue but to bring about universal coverage. Still, if the appeals court were to review the case and find the ACA unconstitutional, that would create a circumstance in which the Supreme Court almost certainly would take the case.

Lawsuits often have an impact beyond the courtroom, and Sissel’s case may serve to stimulate interest in the structural Constitution and one of its less well-known elements. The case also merits a cautionary note. In Munoz-Flores, Justice Antonin Scalia, concurring in the judgment, nonetheless worried about the “uncertainty” and “instability” that would result if every statute could be challenged in the federal courts as improperly enacted. We are not there, fortunately. Not yet.

Terry Eastland is publisher of The Weekly Standard.

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