The Magazine

Round Two

Another constitutional challenge to Obamacare.

Mar 25, 2013, Vol. 18, No. 27 • By TERRY EASTLAND
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

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.

Recent Blog Posts

The Weekly Standard Archives

Browse 19 Years of the Weekly Standard

Old covers